' MUHAMMAD ISHAQ KHAN, J.-Atta Muhammad (50/52) son of Ghulam Haider of Cheghary, Mamash Khel, District Bannu has sought the indulgence of this Court through this Criminal appeal to set aside the conviction and sentences awarded to him by the learned Additional Sessions Judge, Bannu at Lakki vide his order dated 16-2-1981 whereby he was convicted under section 302, P.P.C.
And was sentenced to imprisonment for life. Bakht All Jan has also filed a criminal revision (Petition No,4/D of 1981) wherein he has prayed for the enhancement of the sentence awarded to appellant to that of death. Since both the criminal appeal and criminal revision arise out of the same judgment, therefore, we would dispose of both the matters through this judgment.
2. The prosecution case as narrated in the F.I.R. May be briefly stated as thus; Bakht All Jan (P.W.2) lodged a report on 12-5-1979 at 6.30 hours that on that date at 16.00 hours after closing his Depot situate at Railway Road he along with his father Sakhi Jan and his cousin Aslam Khan were going towards their village and with a view to reach the 'Adds' outside Qasaban Gate they were passing through street known as Baghdad Gall. Haji Hawas Khan of Kotha Ibrahim Khel who met them in the way was also accompanying them. When they reached near the well in the street, Ata Muhammad (accused appellant), Abdus Samad his son, Mehr Zed son of Gul Zad, Latif Khan son of Gul Haider Khan of village Mamash Khel Cheghary Kotha Addin Khel, and Ghafoor of Khadi Khel, Mir Saadullah son of Mir Shah Jehan also of Kothakhadi Khel and Haki of village Malagan all armed with 'topaks' appeared from behind. Simultaneously Ata Muhammad fired a shot at Sakhi Jan father of the maker of the F.I.R as a result of which his father got injured. All the remaining accused also fired shots on them with a view to commit their murders but they took refuge behind a wall and escaped unhurt. The occurrence was allegedly witnessed by Aslam Khan, Haji Hawas Khan and Bakht All Jan maker of the F.I.R. This report was recorded by S.H.O. City by way of 'Murasila'
(Exh.P.A./1) and was subsequently incorporated in the F.I.R. (Exh.P.A.).
3. After completing the investigation the Local Police submitted challan in the Court of Additional Sessions Judge Lakki at Bannu who after recording the statements of the prosecution witnesses and the accused, convicted Ata Muhammad as narrated earlier and acquitted the rest of the accused.
4. Motive for the offence as given in the F.1.R. Was blood feud enmity between the parties. It is of significance to give relationship in between the accused inter se and all the prosecution witnesses.
Abdus Samad accused is the son of Ata Muhammad accused. Latif Khan acquitted accused is 'tarbor' of Ata Muhammad while Mehr Zad (acquitted accused) is the nephew of Ata Muhammad.
The niece of accused Ata Muhammad is married to Haki-ur-Rehman accused. Abdus Samad is also related to Ata Muhammad accused. Sakhi Jan (deceased) was the father of Bakht All Jan (P.W.). A niece of Ata Muhammad (accused/appellant) is married to Aslam Khan (P.W.). This Aslam Khan is the son of a paternal-aunt of Bakht Ali Jan (P.W.).
5. Before proceeding further it is of importance to mention that Ata Muhammad (accused/appellant) on the same day i.e, 12-5-1979 at 17.20 hours also lodged a report at the 'baithak' of Haji Taj Ali Khan to the effect that a shortwhile earlier while he alongwith Ghafoor son of Jan Gul, Saadullah Khan son of Shah Jehan, Haki-ur-Rehman son of Fazal-ur-Rehman, Latif Khan son of Gul Haider, Nawaz Khan son of Gullabat were proceeding to Qasaban Gate through Baghdad Street from the Serai of Raham Zad Khan, after finishing the compromise proceedings between Umar Qayaz and Badi Uzaman and reached near the house of Haji Taj Ali Khan, Sakhi Jan, Qureshi Jan, Saifulmaluk son of Khan Sardar, Rasta Baz son of Saifulmaluk residents of Mamash Khel, Qadir Khan and Azmarai appeared from the street of Col. Amanullah Khan all armed with 'topaks' apd on the direction of Sakhi Jan all the aforesaid persons started firing at them with intent to commit their murders and they also were fired at from behind. When he saw towards that side he noticed Bakht All son of Sakhi Jan, Aslam and Taj All sons of Khamini Gul duly armed with 'topaks' firing at them. He took refuge in the 'baithak' of Taj All Khan while his companions took shelter in the shop of Tailor Master opposite the said house. The learned Sessions Judge, Bannu convicted Ata Muhammad (accused/appellant) under section 302, P.P.C. For the murder of Sakhi Jan and acquitted his co-accused and likewise acquitted all the accused in the cross-case.
5-A. When this appeal came up for hearing on the 19th day of September, 1982, our learned brothers constituting the D.B. Vide order dated 19-9-1982 returned the record of this case as well as that of the cross-case to the learned Sessions Judge, Bannu for bringing the report of Ballistic Expert on the record of this case and recording his statement in presence of the appellant. After recording the statement of the Ballistic Expert and that of the accused/appellant, the learned Sessions Judge, Bannu returned the record of the case to this Court but by order dated 3-4-1983 since the learned Sessions Judge had disallowed the prayer of the accused/appellant to produce 4 witnesses in his defence and the same request was made in this Court, the record was again sent to the Sessions Judge, Bannu for recording the statement of defence witnesses or any one of them as named in the application earlier submitted by the accused/appellant to the learned Sessions Judge, Bannu. After complying with the direction the record was re-submitted to this Court for further adjudication.
6. We have heard the arguments of the learned counsel for the appellant, the learned A.A.-G. For the State as well as the learned counsel for the complainant party in the criminal revision.
8 As stated earlier Bakht Ali (P.W.2) is the son of deceased, Aslam Khan (P.W.3) is the sister's son of the deceased. These two witnesses have claimed to be the eye-witnesses. Obviously being very closely related to the deceased, their evidence requires thorough scrutiny with regard to their authenticity particularly when the parties are inimical toward each other and the fact that there is a counter-version of attack on the accused-party by the deceased side.
9 ' Bakht Ali (P.W.2) stated in his statement before Court that while he alongwith his father were passing through Baghdad Street which leads to Qasaban Gate, Hawas Khan (P.W.) met them on the way and accompanied them. He further went on to say that while they were passing through the street, the appellant and the acquitted accused followed them and accused Ata Muhammad fired the first shot at the deceased with which he was hit and injured. In the F.I.R. He had stated that when they reached near the well in Baghdad Street, the accused appeared from behind and Ata Muhammad (accused/appellant) fired the fatal shot at the deceased and the rest of the accused started firing at them. In his statement in Court he disowned his report (Exh.P.A.) to the extent that he did not say to the Police while lodging the F.I.R. That the moment they reached near the well situate in Baghdad Street the accused started firing at them. In the F.1.12. Bakht Ali (P.W.2) had shown the deceased near the water well when he was fired at by Ata Muhammad (accused/appellant). In the site plan (Exh.P.B.) the deceased Sakhi Jan is shown to have been injured with the fire shot while he was at point No,1. The water well is shown at point No,10 in the site plan. At this point the I.O. Had recovered 10 cardboard discs. Muhammad Khan A.S.I. (P.W.5), as per his statement at the trial, was the first person to reach the spot alongwith the Police Party after hearing the reports of fire shots. On reaching the spot he first of all arrested P.W. Bakht Ali who was standing outside in front of the house of one Hayat which is adjacent to point No,10 i.e, the water well. Although in his first information report, as observed earlier Bakht Ali (P.W.) alongwith deceased and his two other companions had reached the water well at point No, 10 when Ata Muhammad accused/appellant) fired the first shot at the deceased. His arrest close to water well in front of the house of Hayat tempted him to change the place of the deceased when the latter was fired at to point No,
1. It is an established principle of criminal practice that a first information report though not a substantive piece of evidence can be validly used for the purposes of contradiction under section 145 of the evidence Act and to corroborate the testimony of the informant under section 157 of the Act (ibid). In his statement at the trial Bakht An stated that they too were armed at the crucial time and so was the deceased. There is not even the slightest indication in the F.I.R.' referring to their being armed. Even if we believe the statement of Bakht Ali (P.W.) given by him at the trial Ata Muhammad accused-appellant was at point No,5 and the rest of his companions (the acquitted accused) were at point No, 6 while the deceased was at point No,1 and Bakht Ali and Aslam Khan (P.Ws.) at point No,3, the distance between points 1 and 5 being 46 paces, that between 1 and 6, 45 paces, and points 1 and 3, 4 paces apart from each other, and we also believe that the deceased party also notices the arrival of the accused prior to the actual incident, keeping in view the long distance between the two rival parties, coupled with the fact that the deceased party was also armed particularly when there was a blood feud enmity between them, what prevented the deceased party to use arms they were carrying, in defence. Bakht Ali (P.W.) has claimed that after the firing started he and Aslam took shelter in Bulbulai Street. In the site plan, however, there is nothing to indicate the place where they allegedly took refuge. On the other hand Bakht Ali was caught by the 1.0. Near the house of one Hayat adjacent to point No,
10. There is nothing in the F.I.R. Or for that matter in the site plan that Bakht Ali (P.W.) ran for shelter from, point No,3 to Bulbulai Street and from there to the house of Hayat. BL sides if it is believed that while Ata Muhammad (accused/ appellant) was at point No,5 and rest of his companions (acquitted accused) wee at point No,6, it was practically and physically improbable for Bakht li to have rushed to the house of Hayat by crossing the Baghdad Street where the accused party was allegedly in the process of firing at them. The arrest and presence of Bakht Ali lose to the house of Hayat, adjacent to the water well at point No, 10, by Muhammad Khan, A.S.I. Casts a serious doubt in one's mind as to the actual places of the two rival parties. In the first information report as well as in his statement at the trial Bakht Ali (P.W.) has attributed the only shot to Ata Muhammad (accused/appellant) at Sakhi Jan deceased. Accused Ata Muhammad is independently shown at point No,5. The I.O. At the time of spot inspection recovered one empty shell of 7 mm and two empty shells of .12 bore alongwith 5 cardboard discs from this point. The recovery of the empty shells of two different weapons also makes the case of the prosecution doubtful because as a result of one fire shot the aforesaid empty shells could not be recovered. Moreover the I.O.
Recovered one 7 mm empty shell from point No, 5 and two empty shells of the same calibre from point No,6. All these empty shells are reported to have been fired from 7 mm rifle 28777 as per the statement of Arms Expert, which is licensed in the name of Ata Muhammad (accused/appellant).
There is no allegation by the prosecution witnesses that after firing the first shot Ata Muhammad rushed, towards point No,6. This aspect of the matter also makes the prosecution version with regard to the actual place of Ata Muhammad at the time of occurrence very much doubtful.
10 It is the prosecution version that the deceased was hit and injured at point No,1 of the site plan, whereafter he ran for life to the shop of Doctor Baghdad at point No,2 distance 85 paces from point No,1. Doctor Khalid Mahmood (P.W.1) who had conducted autopsy on the dead body of Sakhi Jan deceased found fire-arm inlet wound about 1" x 1" situated at the end of the spinal cord. On internal examination the Doctor found the posterior abdominal wall perforated, spinal cord fractured at the level of lumber region and the abdominal blood vessels also perforated. The Doctor clearly excluded the possibility of the deceased having walked for any distance after the receipt of injury because in his opinion, the spinal cord contained in the lumber region controls limbs etc. Through the nerves and since the nerves controlling limbs were damaged, in the opinion of the Doctor, the deceased could not walk at all. As mentioned above according to the prosecution version the deceased ran for his life after being hit with the fire shot of Ms Muhammad (accused/appellant) from point No,1 to point No,2. The two points are 85 paces apart from each other. Thus the medical evidence also contradicts the prosecution story with regard to the place at which the deceased was present at the relevant time. It is also unbelievable that between points 1 and 2 not a single drop of blood was found although the Doctor did opine that with the injury of the above description the blood-starts oozing out immediately. The recovery of the bloodstained, earth just in front of the shop of Doctor Baghdad only, in view of the statement of the Doctor, goes a long way to suggest that the deceased was not fired and injured at point No,1 as claimed by the prosecution witnesses.
11 Aslam Khan (P.W.3) is also produced by the prosecution as witness of the occurrence. He is mentioned in the F.I.R. As an eyewitness. He has supported the prosecution story in almost every detail. Bakht All (P.W.) justified his presence and company with them from the Depot to the site of occurrence by saying that Aslam used to visit them off and on to have courtesy call and for chatting and gossipping.
' This Aslam is the sister's son of the deceased and has got civil litigation with Ata Muhammad (accused/appellant). He has admitted in his statement at the trial that after the arrival of the Police at the spot Bakht All (P.W.) narrated the occurrence to them whereas he (Aslam P.W.) approached Sakhi Jan (deceased) lying injured in Baghdad street near the shop of Doctor Baghdad. He further went on to say that he accompanied the casualty to the hospital in the Jeep of Hamidullah Khan. Muhammad Khan, A.S.I. (P.W.5) who virtually reached the spot immediately on hearing the report of fire shots, first of all arrested Bakht Ali (P.W.) and after the firing ceased the S.H.O. Also reached the spot who prepared the injury sheet of Sakhi Jan then alive, lying on the steps of the shop of Doctor Baghdad and despatched him to the hospital for medical treatment.
Now if the assertion of Muhammad Aslam (P.W.) that after the arrival of the Police he attended to the casualty his presence with the deceased by the A A.S.I. Or for that matter the S.H.O. Could not go unnoticed but the fact that neither the S.H.O. Nor Muhammad Khan A.S.I. Referred to his presence with Sakhi Jan then injured also suggests that he was not present o.. The spot. This Muhammad Aslam (P.W. ) was neither present at the time of spot inspection nor was his statement recorded by the Police under section 161, Cr.P.C. On that day. On the other hand his statement was recorded by the Police on the 3rd day of the occurrence. He has himself admitted that he came to the Police Station on the 2nd or 3rd day of the occurrence where his statement was recorded by the Police Officer. The purpose of his visit to the Depot and accompanying the deceased party from the Depot to the spot is not convincing. The recording of his statement by the Police on the 3rd day of occurrence suggests that being inimical towards the accused party he has been procured by the prosecution to lend support to its case. Besides, Muhammad Aslam too has nowhere referred to the cross-firing. Hamidullah Khan in whose Jeep Sakhi Jan (deceased) then injured was allegedly taken to the hospital has also not been produced at the trial to verify the presence of this P.W. With the casualty. All these factors make the presence of Muhammad Asia* (P.W.) at the spot and witnessing the occurrence very doubtful.
11. The learned Additional Sessions Judge while convicting the accused/appellant placed emphasis on the recovery of 7 mm rifle No, 28777 and the report of the Ballistic Expert that the crime empties marked C.1, C.2 and C.3 were fired from the same rifle. The report of the Ballistic Expert which is placed on the cross-file and was brought on the file of this case pursuant to this Court direction referred t F above is full of infirmities. In the report, the Expert has expressed his inability with regard to the identifiable date on the crime bullet marked B-5 which was recovered from the body of the deceased at the time of post-mortem examination. We have seen the bullet in Court. It is in perfect shape and even Aziz Khan (C.W.) clearly stated that the empty was not in a deformed shape. He also admitted and this fact is fully borne out from the perusal of the report of the arms expert that much alterations and modifications particularly with reference to the crime bullet B-5 have been made in the report. Para. 6 of the report indicates that B-4 was converted into B-5 with pen while B-4 was added to the same. It is in the statement of Aziz Khan (C.W.) that the two arms experts who had examined the crime empties and had formed the opinion have been removed from service as a result of departmental enquiry on the charges that they had tampered with the opinion expressed in certain cases. Keeping in view the doubtful integrity of the arms experts and the fact that the crime bullet B-5 is in perfect shape but the arms expert have described it in deformed shape, makes the expert report doubtful.
12. It is in the evidence of Bakht Ali (P.W.) that in order to proceed to the 'Adds', there are three ways open to a person to adopt while coming from the Depot. He has in clear words admitted that the path leading through 'chai bazar' is the shortest one. 'The enmity between the deceased and the accused party was on account of murder of one Khushboi Jan brother of Bakht Ali (P.W.2) and son of Sakhi Jan (deceased) for which Ata Muhammad (accused) alongwith his son Hamidullah were charged but were acquitted by the Court of Sessions. In the ordinary course the aggrieved party and the party to avenge the murder of Khushboi Jan was the deceased party. In the presence of blood feud enmity, if the intention of the deceased party were not hostile, they should not have adopted the long route instead of the shortest one. It is not denied that the deceased and Bakht All Jan (P.W.) were also armed at the relevant time. The natural resumption in the circumstances would be that it was the deceased party who was after the accused party to avenge the murder of Khushboi Jan son of Sakhi Jan (deceased). In Misal Khan v. The State 1984 SCMR 488 Honourable the Chief Justice of Pakistan was pleased to hold:- "Accordingly we fail to see how the High Court could have placed reliance on the mere words of the witnesses in regard to Misal Khan's role in having fired an effective shot. It goes without saying that the ocular testimony was interested and inimical, and if it was disbelieved as against those whose appeals were dismissed, it could not be accepted against the appellant without independent corroboration, which was not available. Concluding we agree with the opinion of the trial Court that for the reason given by it, the involvement of the appellant was not established beyond a reasonable doubt."
In the instant case as well the parties are inimical towards each other. There is a counter-version by the defence that the deceased party had attacked them. The prosecution witnesses are closely related to the deceased. The evidence of the prosecution witnesses has not been believed in regard to the acquitted accused by the trial Court. There is no independent corroboration to involve Ata Muhammad (accused/ appellant) with the murder of deceased Sakhi Jan. Therefore, in the light of the aforesaid authority of the Supreme Court, the prosecution evidence cannot be believed against accused/appellant Ata Muhammad as well.
13. It is the prosecution case that the occurrence has taken place in the broad daylight in the fully congested street of Bannu city where there were about 300 houses and about 20 shops but neither of the inhabitants of the houses or any one out of the shopkeepers has been produced at the trial to lend corroboration to the prosecution version. Although one Hawas Khan is mentioned in the F.I.R. To have witnessed the occurrence but he was abandoned at the trial and was not produced.
No doubt the prosecution is at liberty to produce such witnesses as are deemed necessary to prove its case but in the light of the above observations withholding of Hawas Khan from production at the trial leads to the presumption that had he been brought in the witness-box he would not have supported the prosecution version.
14. The recovery of the numerous crime empties, the cardboard discs, the spent bullets and the pellets would lead one to the irresistible conclusion that arms of different type were used but despite all this only Ata Muhammad (accused/appellant) has been made the scapegoat.
15. From what ever angle we may approach the matter, it is full of infirmities, conjectures, inconsistencies, exaggerations, improvements and conviction on the nature of such evidence is not warranted in law because the benefit of doubt in all cases is as of right to be extended to the accused.
16. On the view of the matter that we take, we hold that the prosecution has not come with clean hands to establish its case against the accused/appellant and his conviction is, therefore, not maintainable. Accordingly we accep this appeal, set aside the conviction and sentenceM of the accused/appellant and direct that he shall be set at liberty forthwith if not wanted in any other case. We would also like to remark that the provisions of section 544-A, Cr.P.C. Escaped the notice of the learned trial Judge but since we have accepted the appeal, the criminal revision automatically stands dismissed.