' By this order, I propose to dispose of the appeals and revision petitions entitled above as they arise out of the same order of the District Criminal Court, Poonch.
2. The brief facts forming background to the filing of the above appeals and application for revision are that on 17th July, 1977 at 8-30 a. m. Muhammad Aslam, complainant, lodged an F. I. R. With the Police Station, Rawalakot, alleging therein that on the preceding night he and his brother, Abdul Rehman deceased stayed at the house of Muhammad Rashid, deceased where they had been invited to a dinner and that they alongwith their host, Muhammad Rashid, left together for Parati bazar as he had to go to attend his shop in Paniola bazar while both the deceased had to go to Rawalakot. It was further alleged in the F. I. R. That on their way they stayed for sometime in his house from where the above-named two deceased left together wbile he followed few moments later and that when they reached in a Nullah near the `Parati' bazar, Muhammad Sharif, appellant and Abdul Ghafoor, absconding accused, all of a sudden stood up from behind the bushes and shouted at them that they would not leave them alive today and then Muhammad Sharif, appellant fired two shots from 12-bore (double barrel) gun at Abdul Rehman which struck him on the chest killing him instantaneously, while his companion, Abdul Ghafoor killed Abdul Rashid deceased by firing at him with 12I-bore gun on his shoulder and that after killing the said deceased, the assaiiants also ran after and assaulted him but he managed to escape by taking a jump and running through the bushes. The report also contained the hlegation that Muhammad Sadiq, his wife, Mst. Rehmat Jan and son, Abdul Razaq had also hand in the said occurrence. It was further allged that one Nasim son of Gulab, vegetable vendor had also witnessed the above occurrence and that Fazal Hussain son of Mahboob Khan and Muhammad Saleem son of Fazal Karim residents of Banakha had also seen Muhammad Sharif, appellant and Abdul Ghafoor, absconding accused, running away from the place of occurrence. The motive for the crime was alleged to be that about a year prior to the occurrence, Abdul Shakoor son of Muhammad Sadiq had been murdered and Muhammad Sadiq and his other relative suspected the complainant and his nephew, Muhammad Anees of committing the said crime and that the challan against the complainant and his nephew for the murder of Abdul Shakoor was pending in the Court of Sessions Judge. As regards the motive of Muhammad Sharif, appellant for the commission of the crime, it was alleged that soon after the murder of Abdul Shakoor, he had betrothed his son with the sister of Abdul Ghafoor, absconding accused and thus had become a member of the party of the other accused. On receipt of the above report, a case under sections 302, 109 and 34, A. P. C. And section 5, Islamic Penal Laws Act, 1974 was registered and during the investigation, three empty cartridges from the place of occurrence were recovered on the day of incident and later on after the arrest of Muhammad Sharif, appellant, a 12-bore double barrel gun was recovered from inside the room of his house at his instance. After the conclusion of the investigation of the case, the challan was put up in the District Criminal Court, Rawalakot, on 16th November, 1977, against Muhammad Sharif and Abdul Ghafoor, under section 302/34, A. P. C. Read with section 5, Islamic Penal Laws Act and under section 302/109, A. P. C. Read with section 5, Islamic Penal Laws Act, against Muhammad Sadiq, Mst.
Rehmat Jan, Abdul Razaq and Muhammad Sarwar. During the trial, proceedings under section 512, Cr. P. C. Were taken against Abdul Ghafoor, accused on account of his abscondance after the commission of the offence. The trial Court convicted Muhammad Sharif, appellant under section 3 read with section 24 (1), Islamic Penal Laws Act and sentenced him to imprisonment for life and to 'Diyyae of Rs, 80,00,000 which, on realization, was ordered to be paid to the heirs of Abdul Rehman deceased and also convicted Abdul Razaq, appellant under section 3 read with section 24 (1), Islamic Penal Laws Act and section 109, A. P. C. And sentenced him to 10 years rigorous imprisonment, while the other accused, namely, Muhammad Sadiq, Mst. Rehmat Jan and Muhammad Sarwar were acquitted. Feeling aggrieved of the above order of the trial Court, dated 28th May, 1981, Muhammad Sharif and Abdul Razaq, convict-accused filed separate appeals against their conviction and sentence while the complainant also lodged two revision petitions, one for the enhancement of sentence awarded to the convict-appellants and the others, for the setting aside of the acquittal order made in respect of other co-accused.
3. Now, I proceed to undertake the brief resume of the evidence produced by the prosecution against the appellants and other co-accused who have been acquitted by the trial Court.
4. The prosecution has examined Muhammad Aslam, complainant, Muhammad Saleem, Muhammad Akbar, Fazal Hussain, Nek Muhammad, Mir Muhammad and Sardar Muhammad Latif Khan, Investigating Officer, to establish its case against Muhammad Sharif, appellant. Muhammad Aslam, complainant in his statement has corroborated his version given in the F. I. R. And deposed that at about 6 a. m. On the 17th of July, 1977, he alongwith Abdul Rehman and Muhammad Rashid, deceased were going together towards Parati bazar, Abdul Rehman was leading them being followed by Muhammad Rashid, deceased while he was few paces behind them and that when they reached near the said bazar, Muhammad Sharif, appellant and Abdul Ghafoor, absconding accused, all of a sudden stood up from behind the bushes where they were laying ambush and after shouting at them, Muhammad Sharif fired two shots from his 12-bore gun on the chest of Abdul Rehman, while Abdul Ghafoor, absconding accused fired at Muhammad Rashid, deceased on his shoulder and that after having done to death the above-named deceased, the above- named assailants ran after him and made an assault on him, but he saved his life by running through the bushes. It was also stated by this witness that Muhammad Saleem, P. W. Who came to the spot after the occurrence, had told him that he had seen Muhammad Sharif, appellant running away, holding 12-bore gun in his hand from near the place of occurrence. He has further deposed that Muhammad Sharif, appellant had betrothed his son with the daughter of Muhammad Sadiq, accused and had thus become partisan of the accused and that he also harboured a grudge against Abdul Rehman, deceased because he had appeared as a witness against him before a 'Mufti' in a case between the said appellant and his cousin Muhammad Yunus, Muhammad Saleem P. W.'s statement is to the effect that he alongwith one Abdul Rashid had taken contract of the construction of Plinth of the house of Muhammad Akbar, near the place of occurrence just below the main road leading to Rawalakot and that on the morning of occurrence he was engaged in the said work then he heard three reports of the fire-arm shots towards `Parate bazar, on which he went to the road to find out as to what had happend and that he saw Muhammad Sharif, appellant with 12-bore gun in his hand running towards his house. He further stated that he came to the place of occurrence and told the complainant and Muhammad Shafi that he had seen the said appellant running away soon after the occurrence. This witness is also a witness of recovery of crime-empties from the spot, Fazal Hussain P. W. Has deposed that three crime-empties were recovered from the place of occurrence in his presence by the Police. Nek Muhammad, and Mir Muhammad, P. Ws. Are the witnesses of recovery of 12-bore gun from the house of the appellant at his instance. Sardar Muhammad Latif Khan, P. W. Has investigated the case during which he recovered 'crime-empties and weapon of crime and made them into parcel.
5. The evidence against Abdul Razaq, appellant and other accused who have been acquitted by the trial Court, comprises the statement of Muhammad Aslam, complainant, Muhammad Yaqub, Khadim Hussain, Muhammad Sharif and Sardar Sayab Khalid, Advocate. The above-named witnesses except Sardar Sayab Khalid, have deposed that on the 10th of May, 1977, Abdul Razaq, appellant, Muhammad Sadiq, Muhammad Sarwar and Mst. Rehmat Jan, had threatened the complainant party in a bus that they would revenge the murder of Abdul Shakoor. They also stated that on the same day, Abdul Razaq, appellant and his accused relatives had also held out a threat before the Chief Justice of the High Court in the Courtroom at Rawalakot that they would take revenge of the murder of Abdul Shakoor and that they cannot wait any more.
6. The accused in their statements denied the charge levelled against them. Muhammad. Sharif, appellant has stated that he has been falsely implicated due to enmity and partisanship and further took up the plea of alibi by stating that at the time of occurrence he was in the premises of District Courts at Rawalakot attending to his professional work as petition writer. As regards recovery of 12-bore gun from him he stated that he himself produced the said gun alongwith its licence to the police. The other, accused also stated that the case has been falsely cooked up under a conspiracy due to enmity.
7. I have heard the learned counsel for the parties and also perused the record of the case. It has been contended by the learned counsel for Muhammad Sharif, appellant that the F. I. R. Was entered into roznamcha' by the Investigating Officer, on his arrival on the spot after due deliberations and consultation and was not lodged by the complainant at the time and in the manner at the police station as alleged by the prosecution and that Muhammad Sharif, appellant has been named in the F. I. R. Falsely due to grudge entertained by the complainant against him as he was suspected of supporting the other accused in a murder case of Abdul Shakoor, in which the complainant and son of Abdul Rehman, deceased were involved. It was further argued that the presence of the complainant at the time of occurrence which resulted in the death of the deceased, was very much doubtful and that his statement is not worthy of any credit as he is not only the real brother of Abdul Rehman, deceased but is also inimically disposed towards the accused as he was standing trial for the murder of Abdul Shakoor who was the son of Muhammad Sadiq and brother of Abdul Razzaq, appellant. It was further argued that the eye-witness of the occurrence named in the F. I. R. Namely, Muhammad Nasim, was not produced by the prosecution which fact raises an adverse presumption against the prosecution that if he had been produced, he would have not supported the prosecution version. The learned counsel for the appellant has also contended that the evidence of Muhammad Saleem, P. W. Is also unreliable as this witness is not only close relative of the deceased but is also a chance witness. It was lastly argued that the recoveries 'of the crime-empties from the spot and the shot-gun from a room of the house of the appellant, do not stand proved beyond reasonable doubt as the witnesses of these recoveries are either close relatives of the deceased or the persons whose relations with the appellant are admittedly strained.
8. Now, I proceed to take up the examination of the above grounds urged by the learned counsel for the said appellants in support of the appeals, one by one.
9. As regards the objection of the learned counsel for the appellant that the F. I. R. Was recorded after due deliberations by the Investigating Officer, After going to the spot, I do not find much substance in it as the same does not find any support from the record. No circumstance of any significance has been pointed out by the learned counsel for the appellant which may even indicate the possibility of F. I. R. Having been not recorded at the police station at the instance of the complainant but on the spot by the S. H.
0. After making inquiries there. Thus, in absence of any evidence on the record which may shows that the F. I. R. Was entered into `roznamcha' on the spot by the S. H. 0, after his arrival there, it shall be presumed that the same was recorded at the time, in the manner and at A the place as alleged by the prosecution, for the simple reason that an act performed by an officer in the discharge of his official duty is presumed to have been performed correctly and rightly in accordance with the law unless it is otherwise proved. In this view of the matter, the above contention of the learned counsel for the appellant is repelled.
10. The next contention of the learned counsel for the appellant, Muhammad Sharif that the complainant was not present at the time when Abdul Rehman and Muhammad Rashid, were fired at and killed, appears to have much substance in it. In view of the circumstances of the case, the presence of the complainant at the time of the occurrence on the spot appears to be improbable.
The reason given by the complainant in the F. I. R. As well as in his statement before the trial Court for accompanying the two deceased at the time of occurrence, is that he and his brother Abdul Rehman deceased had stayed on the preceding night at the house of Muhammad Rashid, deceased after having taken their evening meals there on the invitation of the said deceased and that from there, he and the deceased had left together for Paratii bazar because he had to go to Paniola bazar to attend his shop while the deceased were scheduled to go to Rawalakot. To me, in the given circumstance as the case, the version of the complainant that he and his brother had stayed at the house of Muhammad Rashid deceased on the preceding night of the occurrence, does not appear to be plausible one. No explanation whatsoever, is forthcoming as to the occasion for the invitation of the complainant and his brother to a dinner by Muhammad Rashid deceased.
No other person from the immediate locality or village is stated to have been invited to the said dinner-party. Even if it is assumed that they were invited by Muhammad Rashid deceased at his residence and had taken their meals there, there appears no plausible reason for their staying there for the night and not returning to their homes after taking their meals. Their house was not far off from the house of Muhammad Rashid, deceased and it is a matter of common knowledge that in the villages, the evening meals are taken very early and it would have been quite natural on the part of the complainant and his brother to have come back to their house on the night in question instead of staying at the residence of their host. The version of the complainant of having been invited by Muhammad Rashid, deceased to a dinner and of staying for the night there, does not find any support from any other evidence on the record. Had it been factually correct, some other inmate of the house of Muhammad Rashid deceased or his neighbour would have corroborated it.
Thus, if the very reason advanced by the complainant for his accompanying the two deceased at the time they were fired at and done to death, appears to be unsound and unsatisfactory then his presence on the spot at the time of occurrence in which the two deceased lost their lives, also becomes doubtful. II. There is yet another circumstance which casts serious doubt on the correctness of the statement of the complainant regarding his accompanying the deceased at the time of occurrence and seeing Muhammad Sharif, appellant and his companion, Abdul Ghafoor firing at the deceased. He has deposed that he was only few yards away from the deceased at the time they were fired at by the said appellant and the absconding accused and that he was also chased and attacked by them after they had caused fire-arm injuries, to the deceased. If his above statement is irue, then, to me, there were. Very rare chances of his safe escape from the place of occurrence. When the above-named assailants were armed with fire-arms like 12-bore guns and the complainant being quite near to them was within the range of fires of their guns, it was but quite natural for them to have made a serious attempt at his life and killed him because firstly, it was actually he who was involved as an accused in the murder of Abdul Shakoor, brother of Abdul Ghafoor, absconding accused, and not the deceased and secondly, the direct evidence against them for committing the murder of the deceased would have been eliminated. Thus, it does not at all appeal to the common sense that Abdul Ghafoor, absconding accused would have spared the complainant and let him run away from the place of occurrence when he considered him to be responsible for the murder of his real brother and was in a position to easily deprive him of his life and instead would have killed the two innocent persons who were not in any way directly involved in the commission of offence of said murder, by way of avenging the said murder of his brother, Moreover, there is yet another very important fact which also excludes the possibility of the complainant of having seen the occurrence resulting in the death of Abdul Rehman and Muhammad Rashid. Deceased. It is the prosecution case itself that soon after the occurrence, Muhammad Shafi, Said Muhammad Khan, Muhammad Hashim and Muhammad Akbar Khan had reached the spot after hearing the reports of the fire-arm shots. They were all cited as prosecution witnesses in the challan but except Muhammad Akbar Khan, were given up by the prosecution.
Said Muhammad Khan and Muhammad Shafi had appeared as defence witnesses. The above- named persons appearing either as P. Ws. Or D. Ws. Agreed in their statements that the complainant had come on the spot after them and even according to the evidence of Muhammad Akbar Khan, P. W. The complainant had reached the place of occurrence more than half an hour after his arrival there. The complainant in his statement, has also admitted that when he came back to the place of occurrence, the aforesaid persons had already gathered there. However, the explanation offered by him of his coming after them on the spot is that on being followed and attacked by the assailants of the deceased, he had run away from the spot and had returned there to find the aforesaid persons there. This explanation does not sound plausible. He himself has deposed in his statement that he had seen the appellant, Muhammad Sharif and Abdul Ghafoor, absconding accused, going away from the scene of occurrence on the same path through which he had come on the spot when he had taken a jump after being attacked by them. This means that immediately after the occurrence, the appellant and his companion had run away from the scene of occurrence in which case it was but natural for the complainant to have immediately come back to the place where the deadbodies of the deceased were lying and thus, he would have been the first person to be present on the spot after the assailants had left it. But here we find that he returned to the spot to attened to the deadbodies even more than half an hour later than the persons who came there from nearby places after hearing the reports of the firm-arm shots. As this conduct which is quite inconsistent with the human instinct and nature, goes a long way to show that in fact he was not accompanying the deceased when they were fatally injured by the fire-arm shots, otherwise he would not have taken the recourse to unbelieveable conduct of his remaining away for more than half an hour from the scene of occurrence even after knowing that the accused had run away from there after killing the deceased. A person who watches his brother baying been done to death in no case can be so-callous as to run away after seeing such tragedy without any compelling reasons and not attending to his dying brother immediately at the earliest possible opportunity. According to the complainant, one Muhammad Nasim, P. W. Had also seen the occurrence but he was not produced by the prosecution and was given up on the ground of his having been won over by the accused. The reasons given by the prosecution for not producing him does not appear to be sound as this witness is closely related to the complainant as well as to the deceased. He is a nephew of Abdul Rehman deceased while the sister of Muhammad Rashid deceased is married to his younger brother. In these circumstances, the non-production of this witness by the prosecution gives rise to the adverse inference that he would have not supported the prosecution case if he had appeared as a witness. The above adverse inference receives support from the fact that this witness in an application against the complainant-party, under section 107, Cr. P. C. Before the A. D. M., had made the accusation that the complainant-party was compelling him to give false evidence against the accused, failing which he was being threatened with dire consequences. The fact of complainant's statement remaining unsupported by the other witnesses named by him in the F. I. R. Also casts shadow on the truthfulness of his statement involving the appellant under discussion in the commission of offence of murder of the deceased.
The circumstances enumerated above leads one to the conclusion that this witness was not present and had not witnessed the occurrence and has unsuccessfully attempted to involve the appellant and the absconding accused, Abdul Ghafoor, due to close relationship with Abdul Rehman deceased and admitted animosity against the persons who were challaned in this case.
12. After discussing the evidence of the complainant who is the only eye-witness in this case, I proceed to take up the statement of Muhammad Saleem, P. W. Which furnishes the circumstantial evidence. The evidence of the above-named witness who is stated to have seen Muhammad Sharif, appellant running away from the scene of occurrence with a 12-bore gun in his hand, also does not appear to be worthy of reliance in the given circumstances. He is not only related to Muhammad Rahshid, deceased who was his cousin but is also a chance witness residing at a distance of about I miles from the place of occurrence. He has given the explanation of his presence near the spot on the ground that he was engaged in the construction of plinth of a house of one Muhammad Akbar, near the main road leading to Rawalakot. After taking into consideration all the attending circumstances, his engagement, to me, in the work of construction of plinth at the time of occurrence, appears to be very much doubtful. According to his own statement, he had taken the contract of construction of plinth of the house jointly with one Abdul Rashid but strangely enough he was working all alone on the said contract when he heard the reports of the shots from the place of occurrence and then witnessed Muhammad Sharif, appellant making good his escape with 12-bore gun in his hand therefrom. In the ordinary circumstances, both the partners would have been together engaged in the work of the execution of their contract and it sounds odd that the other partner would have come there to join him much after the occurrence. It also appears extraordinary thing that he had come to work on his assignment at such an early hour of the day when he lived about two miles away from there. It is again a strange co-incidence that the appellant adopts the same route for escaping from the spot after the commission of offence where this witness was present. On top of all that, there is yet another very important fact which renders his statement suspicious and doubtful. He is not the person who is named in the F.I.R. As having seen the accused running away soon after the occurrence. In the F. I. R. One Muhammad Saleem son of Said Akbar is stated to have seen the accused running away from the place of occurrence alongwith Fazal Hussain, whereas the name of the father of this witness is Abdul Karim which means that he has been substituted for a witness mentioned in the F. I. R. According to the F.
I. R., both the said Muhammad Saleem and Fazal Hussain had seen the accused named therein running away from the spot but the other witness, Fazal Hussain did not state that he had seen the appellant under discussion and has only stated to have seen the absconding accused, Abdul Ghafoor. The aforementioned facts and circumstances show that this witness is also not a witness of truth who has given his evidence against the appellant due to relationship with the deceased.
13. The other evidence utilized by the prosecution against the appellant is the recoveries of empty cortridges from the spot and shot-gun from him. The above evidence also does not inspire confidence and is of doubtful character. The recovery of the two crime-empties alleged to have been left on the spot by the appellant is also not above suspicion. This recovery is witnessed by Muhammad Saleem and Fazal Hussain, P. Ws. Who are admittedly the close relatives of Muhammad Rashid, deceased. These are the persons who are also named in the F.
1. R., to have seen the accused running away from the place of occurrence soon after the occurrence. When the other respectable persons from amongst those who had gathered on the spot soon after the occurrence, from the immediate locality, were readily available for witnessing the recovery of crime-empties, there was no earthly reason for the Investigating Officer to keep such interested and chance witnesses to make them witness the recovery in question to the exclusion of all others. These witnesses lived at a long distance from the place of occurrence. These witnesses have deposed to have seen the crime-empties lying on the spot only after the arrival of the Police there and not before that Similarly, these crime-empties were not seen on the spot by any other person who had gathered there immediately after the occurrence. If the empty cortridges were actually lying on the spot near the deadbodies of the deceased as is alleged by the prosecution, then there appears no reason why the same would not have been noticed by any of the persons except these witnesses who had gathered there soon after the occurrence before the arrival of the Police on the spot. The leaving behind the crime-empties by the appellant at the place of occurrence is also a conduct which is not in consonance with the natural conduct of man of ordinary prudence. It looks like an act of foolishness on the part of the culprit to have thrown away the crime empties on the spot in order to furnish incriminating evidence against him to the Investigating Agency. At least such a conduct was not expected from a person like Muhammad Sharif, appellant who is a petition-writer and, as such, was expected to know the peril to which he was exposing himself by throwing away the crime-empties on the spot after removing the same from the chambers of the gun used in the commission of offence. This alleged unnatural conduct against his own interest on the part of the appellant also contributes to the conclusion that the recovery of the crime-empties from the spot is fake and not genuine one.
14. The recovery of weapon of offence from the appellant and its making into parcel in the manner, from the place and at the time as alleged by the prosecution, also does not appear to be free from doubt. The 12-bore gun is alleged to have been recovered from Muhammad Sharif, appellant on his pointation from a room of his house and made into sealed parcel in presence of Nek Muhammad and Mir Muhammad, P. Ws. The aforementioned witnesses although relatives of the said appellant, are not in good terms with him and admittedly there is long standing history of animosity between them and the appellant due to litigation, both criminal and civil, going on between them, prior to the said recovery. The recovery of shot-gun witnessed by such hostile persons to the appellant naturally loses the value it otherwise would have carried if the same had been witnessed by the independent and disinterested persons. The recovery under discussion also cannot be effectively utilized against the appellant for yet other reasons. The appellant was arrested on 20th July, 1977 whereas the gun in question was recovered from his possession on 30th July, 1977. This gun and the crime-empties alleged to have been taken into possession from the spot on the day of occurrence, were not despatched to the Forensic Science Laboratory for the examination of the fire-arms expert immediately after their respective recoveries but the gun alongwith crime-empties was sent to the said laboratory after the lapse of a considerable period from the date of their respective recoveries. The keeping of the gun and the crime-empties by the Investigating Agency with it for unusually long time after their recovery does not exclude the possibility of the manipulation and substitution by the Investigating Agency which was required to despatch them to the fire-arms examiner for his export opinion at the earliest possible opportunity after their recovery. There is no satisfactory explanation for not sending the gun and the crime-empties to the Forensic Laboratory for examination within reasonable time after their respective recoveries and the one offered by the Investigating Officer that delay in despatching them to the concerned quarters had resulted due to the fact that he wanted to send all the incriminating articles to the Forensic Laboratory after the arrest of the absconding accused, Abdul Ghafoor, does not impress at all. There was no practicle hitch in sending the articles in questions to the fire-arms expert for his opinion before the arrest of the afore-named accused. In view of the aforesaid infirmity, the report of the fire-arms expert that the crime-empties had been fired from the gun recovered from the appellant cannot be made use of as a piece of evidence against him. Moreover, when the securing of the crime-empties from the spot soon after the occurrence has been found to be a doubtful matter, then the above report of the fire-arms examiner does not provide an incriminating evidence against the appellant.
15. After discussing the recoveries, I would briefly advert to the motive attributed to Muhammad Sharif, appellant for the commission of the offence with which he is charged. The said motive consists of two elements. Firstly, it is alleged by the prosecution that after the murder of Abdul Shakoor, for the commission of which the complainant and his nephew, Muhammad Anees were also shown accused in a challan filed in the Court of law, the appellant had engaged his son with the sister of the said deceased and had thus become a member of the party of the other accused in this case who are close relatives of the said deceased. Secondly, it was alleged that Abdul Rehman deceased had appeared as a witness against the appellant in a case going on between him and his cousin, Muhammad Yunus, before a Mufti, for which reason the appellant bore grudge against him. First of all, the motive ascribed to the appellant for the commission of the offence is very weak and secondly, the same is also not established from the evidence produced by the prosecution in this behalf. There is no evidence on the record to substantiate the allegation made by the complainant in his statement that the engagement of the daughter of Muhammad Sadiq, accused had taken place with the son of the appellant, and even the complainant has stated not to know this fact personally and based his above statement on hearsay. Similarly, except the statement of the complainant and that too based on hearsay, nothing has been brought on record to show that Abdul Rehman, deceased had earned the displeasure of the appellant by deposing against him in a case before the Mufti. Even if it is assumed for the sake of argument that the appellant had the motive as alleged by the prosecution, stilt such a motive was not sufficient to have impelled the appellant to commit such a heinous offence as a double murder. For the reasons stated above, I have no hesitation in coming to the conclusion that there existed no motive, whatsoever, for the appellant to kill the deceased in this case. Thus, the absence of any motive for the crime also renders the prosecution charge against the appellant doubtful one. On the other hand, the complainant had definite motive to falsely implicate the accused in this case of the murder of his brother. He alongwith his nephew, Muhammad Anees who was the son of Abdul Rehman, deceased, was admittedly involved at the relevant time in a murder case in which the deceased therein was the son of Muhammad Sadiq and Mst. Rehmat Jan, accused and brother of absconding accused, Abdul Ghafoor and Muhammad Sarwar, an acquitted accused. Thus, the incident of murder of his brother did provide him with an opportunity to falsely involve persons whom he considered to be his enemies in the said murder. Similarly, it is also an admitted fact that he considered the appellant, Muhammad Sharif to be an active partisan of the relatives of Abdul Shakoor in whose murder case he was one of the accused. In the F. I. R. Lodged by the complainant, it is alleged that the appellant had been providing refuge to the absconding accused, Abdul Ghafoor who was absconder in a criminal case before the present occurrence.
16. After examining the case against Muhammad Sharif, appellant, I now proceed to take up the case of Abdul Razzaq, appellant in Appeal No, 21 of 1981 and acquitted accused who are respondents in revision petition No, 16 of 1981. The only allegation against him was that sometime prior to the occurrence, they held out a threat to the complainant party that they would take the revenge of the murder of their relative, Abdul Shakoor. To prove the above allegation, the prosecution has produced, Khadim Hussain, Muhammad Aslam, complainant, Muhammad Yaqub and Sardar Sayab Khalid, P. Ws. Muhammad Aslam, complainant has stated that, on 10th May, 1977 when they were sitting in a bus for going to attend to Court at Rawalakot, the acquitted accused, namely, Muhammad Sadiq, Mst. Rehmat Jan and Muhammad Sarwar also boarded the said bus at Parate bazar where they threatened him that they would avenge the murder of their relative from the complainant party. It was further deposed by him that while they had appeared before the Chief Justice High Court at Rawalakot in a transfer application, Abdul Razaq, accused-appellant threatened him in the open Court that they would take the revenge of the murder of his brother, Abdul Shakoor, that they would not wait any more and that the other accused named-above also supported him. Khadim Hussain and Muhammad Yaqub, P. Ws. Also corroborated the evidence of the complainant in their statements and also stated that in the bus, threat was also given by Abdul, Razaq, accused-appellant. Sardar Sayab Khalid, has deposed that Abdul Razaq, appellant had threatened the complainant party that they would avenge the murder of Abdul Shakoor, in the open Court before the Chief Justice High Court who was hearing a case between the parties. To me, the evidence regarding threat having been given by Abdul Razaq, appellant and other accused to the complainant-party in the bus, appears to be not true. Firstly, the above deposition has come from rightly interested and partisan persons. Khadim Hussain, P. W. Is a cousin of Muhammad Suleman who is accused in the murder case of Abdul Shakoor, and, Muhammad Anees, an accused in the said case and son of Abdul Rehman, deceased, is his nephew. From his statement it is also established that he is a partisan of the complainant-party and is supporting them in the murder case of Abdul Shakoor. Muhammad Yaqub, P. Ws. Son's wife is a daughter of Abdul Rehman deceased, whereas Muhammad Aslam is not only complainant but is also the real brother of Abdul Rehman, deceased. Thus, their evidence under discussion is not reliable. Secondly, there is material contradictions in their statements which go to prove that their evidence regarding the threat to avenge the murder of Abdul Shakoor having been held out by the accused, is not correct. Muhammad Aslam, complainant does not name Abdul Razaq, accused-appellant among the persons who boarded the bus at `Parati' bazar and held out the aforesaid threat, whereas the other witnesses-named above not only did so but also stated that it was he who had actually given the above threat. Had their version under discussion been true, such a material discrepancy in their statements would not have occurred.
17. As regards the threat in question having been held out by the accused in the open Court at Rawalakot, Sardar Sayab Khalid P. W. Has only named Abdul Razak, appellant as the person who had done so which means that there is no evidence worthy of reliance that the acquitted-accused in this case held out any threat to kill the complainant party to avenge the murder of their relative, Abdul Shakoor and they have been rightly acquitted by the trial Court as there existed no evidence against them at all to, in any way, connect them with the abetment of the murder of the two deceased in this case. As regards Abdul Razaq, appellants, even if it is assumed on the basis of statement of Syed Khalid, P. W. That he did give the threat to the complainant in the open Court that if he did not get justice from the Court, he would take the revenge of the murder of his brother Abdul Shakoor, still I do not think that the fact of holding out this threat was itself sufficient to find him guilty of abetting the main culprit in the murder of the deceased. There is not an iota of evidence on record to show that this appellant or his other relatives who were also accused of having hand in the murder of this case, have taken any steps after holding out the aforesaid threat to the complainant to put the same into practice. There is no allegation that there was any conspiracy between the persons who were alleged to have fired at and killed the deceased and the other accused who were charged of abetting in doing so. In the absence of any evidence to the effect that prior to the occurrence some conspiracy to kill Abdul Rehman and Muhammad Rashid had taken place between the actual killer of the said deceased and the appellant and other acquitted-accused, no conviction of the appellant and other acquitted-accused can be based for the abetment of murder in this case solely on the evidence that they had held out any threat to kill the complainant-party. It is not expected of a man of average intelligence that he would give threat to anybody to kill him in an open Court if he actually intended to do so, Such like threat are usually empty ones, never intended to be translated into reality. /the up-shot of the above discussion is that the prosecution has miserably failed to bring charge home to both the appellants and acquitted-accused who are respondents in the revision petition, beyond reasonable doubt. As regards Muhammad Shard, appellant, the ocular testimoney furnished only by the complainant cannot be taken into consideration and utilized against him as the same is given by an interested and hostile person who had a definite motive to falsely implicate him and whose presence at the time of occurrence leading to the double-murder of the deceased, is also doubtful due to being inconsistent with the probabilities of the case. Once his evidence is discarded and ruled out of the consideration for the aforesaid reasons, the corroborative evidence produced against him becomes of no avail to the prosecution and no conviction can be based merely on its strength even if it is assumed to be correct which, of course, is not the position in this case. The corroborative evidence consisting of the circumstances of the said appellant having been seen running away from the place of occurrence by one interested witness and the recovery of the crime-empties from the spot matching the shot-gun recovered from the appellant is also not reliable and unimpeachable character. The motive ascribed to the said appellant for the commission of the offence of murder also remains unestablished by the prosecution. So far as the appellant, Abdul Razaq and the other acquitted-accused, one concerned there is no evidence worth the name against them on the basis of which their conviction can be recorded.
19. For the foregoing reasons, giving the benefit of doubt to Muhammad Sharif, appellant, his conviction and sentence are set aside who shall be set at liberty forthwith if not wanted in any other case. The appeal of Abdul Razaq, convict-appellants also stands accepted and accordingly his convicted and sentence is set aside. The revision petitions filed against the order of the District Criminal Court, Poonch are also dismissed.