1. ' MUHAMMAD HALEEM, C. J.-This appeal, by special leave, arises from the judgment of the Peshawar High Court, Peshawar, dated 25th March, 1980, by which Criminal Appeal No, 295 of 1979, was dismissed and the convictions and the sentences of the appellants were upheld.
2. ' According to the F.I.R. Lodged by Jamshed Ali at 16-00 hours on 21st April, 1978, at Police Station Umar Zai, District Peshawar, he alongwith Sardar Khan (deceased) his father, and Taslim Khan proceeded from their village to attend the hearing of a case pending in the Court of Sessions, Charsadda, but as the Presiding Judge was absent a date was given for the next hearing, and from there they proceeded to village Garhi Hameed Gul to attend the wedding of the son of Muhammad Shah. After taking meals they returned by a bus for their village and alighted at Adda Bazar Sherpao and from there they took the way for their village Sherpao. The deceased was ahead of the other two and when he came near the shop of Khan Shah, they saw Safdar Khan, Nadir Khan and Azeem Khan, brothers inter se, standing armed with guns; and from amongst them Safdar Khan fired a shot at Sardar Khan which hit him and he fell down. Nadir Khan and Azeem Khan thereupon fired at Jamshed Ali and Tasleem Khan, but they somehow or the other evaded the shots and took refuge for some time, whereafter they returned to the spot and saw Sardar Khan lying dead. One Fateh Khan was also named as an eye-witness alongwith the shopkeepers.
3. ' The motive imputed in the F.I.R. Was that the appellants had taken revenge as three years before the present incident Tahseenullah, the son of Safdar Khan, was killed for whose murder the deceased, Sardar Khan, Jamshed Ali and one Javid were booked for trial, and they had gone to attend the hearing of this case on the fateful day.
4. ' Safdar Khan is still absconding and has not been arrested while the appellants evaded their arrest and were declared absconders. They were arrested on 31st of January, 1979. Two crime empties were recovered from the spot but they had no evidentiary value. The deceased suffered one gun- shot injury.
5. ' At the trial, the prosecution examined Jamshed Ali (P.W. 7), Fateh Khan (P. W. 8) and Tasleem Khan (P. W. 9). Sister of Tasleem Khan is married to the brother of the deceased while Fateh Khan was stated to be an independent witness. Khan Shah, near whose shop the incident occurred, was examined by the police, but he was not cited as a witness. Ibrar Shah (P. W. 4), another shopkeeper, was examined, but was declared hostile as he did not support the prosecution. The conviction rested entirely on the ocular testimony and the abscondance of these two appellants which was accepted and they were, accordingly, convicted under section 302, P. P. C. Read with section 34, P.P.C. And each sentenced to imprisonment for life and to pay a fine of Rs, 2,000 or in default to undergo R. I. For one year. They were further convicted, on two counts, for attempted murder and sentenced to undergo R. I. For two years and to pay a fine of Rs, 1,000 each or in default to suffer R. I.
6. For six months. They were also ordered to pay compensation in the sum of Rs, 5,000 each to the heirs of the deceased.
7. ' On appeal, the High Court upheld the finding of the trial Court as to the presence of three eye- witnesses despite the fact that it was urged that the presence of Jamshed Ali and Taslim Khan was doubtful as they could not have evaded the shots fired by the appellants. As for Fateh Khan, it was urged that his presence too was doubtful as his evidence was intrinsically false in essential respects. The reason he gave for coming to the Adda was that he wanted to make purchases, but there is nothing on record to sustain that he did the shopping. Again he stated while giving evidence in Court that after Pashing prayers' time, he came from his village to the Adda for this purpose, but he did not say so in his police statement. Next, in his statement in Court be deposed that he saw the incident while "standing by the shop of (Shal) butcher", which was also not stated by him in his 161, Cr. P. C. Statement. He also disowned his assertion in his 161, Cr. P. C. Statement that he saw the incident while sitting in the shop of a butcher. The High Court, however, held after referring to his 164, Cr. P. C. Statement that there was no omission or contradiction in his statement.
8. Leave to appeal was granted to reappraise the evidence in the interest of safe dispensation of justice.
9. ' We have examined the evidence with a view to finding out as to whether it is of such a quality as to sustain conviction of guilt on the charge of murder. We have noticed from the evidence of Jamshed Ali (P. W. 7) that the motive was not only the one attributed in the F. I. R., but also in regard to the incident in which one Qadir was effectively fired at some 14 years back, which became the subject-matter of cross-cases between the parties. On the one side Azeem Khan, Nadir Khan, Jehanzeb and Safdar Khan were arrayed as accused and on the other Jamshed Ali, Sardar Khan, Niaz Ali and Ghani were booked. There was, therefore, long standing enmity between the parties and in this background the veracity of the witnesse necessarily had to be judged on its intrinsic worth and if necessary independent corroboration was also required. The witnesses alleged that they were fired at from a distance of 16 to 17 paces, but we fail to see how Jamshed Ali and Taslim Khan could evade the striking of shots fired by the appellant when there appears to be no obstacle or other factor, which could give them a cover. - All that they said was that after the firing of the shots, they ran out of fear towards the Mandi. But no attempt seems to have been made earlier to avoid being hit by the gun-shots. In this view of the matter, this version is hardly believable.
10. Obviously they had made an attempt to or in the two appellants whose presence otherwise could not be established. The version was that the two appellants and Safdar Khan were near the show of Khan Shah another shopkeeper, but this version could not get corroboration as this witness was abandoned. As for Itbar Shah, anothe shopkeeper near about the place of occurrence, be too did not support the prosecution case as, according to him his shop was closed.
11. ' In all three shots were fired, but only two empties were recovered from the spot where Safdar Khan was said to be standing and firing the fatal shot at the deceased. If the version of two shots allegedly fired at the witnessed, is disbelieved then the presence of two crime-empties at the spot becomes a suspicious feature. It may then be that the assailant, who had fired at the deceased had re-loaded the gun and fired the second shot also, but the prosecution do not allege the firing of this shot by this assailant at the two prosecution witnesses. The injury on the deceased itself suggests that the shot was fired from a close distance causing a hole I" x I' which apparently shows an element of surprise. If at all the prosecution witnesses and the deceased had seen the two appellants and Safdar Khan armed with guns, it does not appear to be consistent with the normal human conduct that they would still follow the same path knowing that they had just returned from attending the hearing of murder case of the son of Safdar Khan, who could have wreaked vengeance. In this event they would have abandoned the path and taken some other route.
12. Apparently what seems to us is that Safdar Khan bad surprised the deceased by firing the shot from a close distance, and as for the other two appellants, the role attributed to them appears to us to be farcical and actuated only to implicate them in the crime. Jamshed Ali and Taslim Khan on seeing the incident in all probability had bolted from the spot as Jamshed Ali who was also implicated in the crime could have been the target.
13. ' As for Fateh Khan, whose evidence waqf, given due emphasis as being an independent witness, he too has falsified and his evidence cannot be held on any higher footing than the other interested witnesses. His presence also appears to be doubtful been of the improvements in his evidence. In this behalf he was confronted with the omissions in his 161, Cr. P. C. Statement. Those omissions are: firstly, that after offering his Pashing prayer in his village he came to Adda Sherpao for making purchases; secondly, that he stood by the shop of "Shal" butcher at the time of the occurrence: thirdly, he failed to mention that the appellants and Safdar Khan stood near the shop of Khan Shah, and fourthly, that he did not mention about the appellants firing at Taslim Khan nor that this witness and Jamshed Ali had run away from the spot. The High Court nonetheless referred to his 164, Cr. P. C. Statement and gave a finding that there was hardly any contradiction.
14. Apparently, the earlier statement when the incident was fresh in his mind will be a better criterion for judging as to what he had said, and in the latter statement recorded after some days there is always a likelihood of improvements. Therefore, the High Court was in error in referring to his 164, Cr.
15. P. C. Statement for holding his version to be truthful as this statement cannot be used except for the purpose of highlighting the contradictions in the evidence. In this view of the matter, though Fateh Khan was described as a disinterested witness, yet his evidence does not inspire confidence, and, in any case, does not support the ocular account furnished by the other two witnesses.
16. ' Accordingly, we are unable to agree with the conclusions of the Courts below as to the guilt of these appellants and giving to them the benefit of doubt, we acquit them. The appeal is allowed.
17. They should be released forthwith, if not required in any other case.