Mushtaq Hussain, J.--Amir Khan son of Muhammad Nazir Pathan aged 19 years resident of village Chhab, Police Station Makhad, District Attock, has been convicted under section 302, P. P. C., and sentenced to transportation for life by the learned Sessions Judge, Campbellpur, by his order dated 12- 8-1970, for having caused the death of Amir Khan deceased with revolver Exh. P. 1 on 6-2-1970 at about 2-30 p.m. in a lane in village Chhab, Police Station Makhad, Tehsil, Pindigheb, District Campbellpur.
2. The story of the prosecution is that in the year 1955 the mother of Amir Khan appellant was abducted by a relation of the deceased. She filed a suit for dissolution and the deceased helped her in prosecuting that case. The appellant harboured a grudge against the deceased on that score. A few months before the occurrence, security proceedings were started against the deceased and his brother at the instance of the father of the appellant. Both sides were bound down to the exclusion of the accused.
3. The mother of Khaki Jan P. W. 10 and Amir Khan deceas ed was working at Islamabad as a labourer. She sent a message to her sons that she would be arriving by rail at the Chhab Railway Station by the train which arrives at 1-30 or 2 p.m. On the fateful day, the two sons, therefore, repaired to the Railway Station to receive their mother. She, however, did not arrive. On their way back to their house, Khaki Jan stopped for a short while to make water and the deceased thus became ahead of him on the road by a few steps. When the deceased reached the village and was passing a street, which ran at right angles to the road he was traversing, the appellant came out of the lane and fired at him with a revolver hitting him on the upper part of the sternal wherefrom it travelled towards the left lateral side piercing the upper lobe of the left lung. The bullet remained stuck in the posterior wall of the thorax between the 7th and 8th ribs piercing the intercostal space. Meanwhile, Khaki Jan over took him. Amir Khan deceased breathed his last immediately at the spot.
4. Bahawal Khan and Allah Khan P. Ws. 11 and 12 who live at a distance of about 700 yards from the scene of occurrence, happened to be going to the Mandi and saw the occurrence from the same Gall as the accused fired at the deceased.
5. Khaki Jan P. W. 10 proceeded to Lakarmar, a place two miles away, with a view to boarding a bus for going to the police station. When he reached the bus-stand, he was informed that an officer of the Injura Police Post happened to be investigating a case at village Kanjur. He, therefore, proceeded to Kanjur a village 300 yards away from the bus-stop. There he met Head Constable Talib Hussin Incharge of Police Post Injura at about 3 p. m. He made a statement before him, which was recorded as Exh. PA. The Head Constable finished recording the statement by 4 p.m. when he forwarded it the Police Station Pindigheb through Nurullah Dafadar for registration of a case and himself proceeded to the spot reaching there at about 4-15 p.m.
6. He recorded the statement of Bahawal Khan and Allah Khan P. Ws. who were present and having prepared the inquest report and injury statement, sent the dead body for post-mortem examination to the mortuary. He then handed over investigation of the case to Sub-Inspector Qurban Shah P. W. 14, who had reached the scene of occurrence at about 2 a. m. on the following morning.
7. The appellant was produced before hint by Gul Muhammad, Chairman and he was arrested. At the pointing out of the appellant, he recovered revolver Exh. P. 1 which had four bullets P2/1-4 and an empty P. 3 from under the bedding inside his Kotha. He prepared separate parcels as usual. Having completed the Challan, he sent it up to the Court for trial with the result already indicated above.
8. At the trial, the appellant made a complete denial of all the allegations against him. The prosecution consequently produced fourteen witnesses to prove its case while the appellant produced only one person in defence.
9. Dr. Raza Nur P. W. 1 found the following injury on the person of the deceased:-- "Wound of entrance was circular about 1/3" x 1/3' on the upper part of the sternum (maubrium sternal) about 2/3" below the supersternal not having a direction and inclination towards left lateral side. The bone had been pierced. The bullet was stuck into the posterior wall of the thorax in between 7th and 8th ribs piercing the intercostal space. Pleura was pierced by the bullet on the left side both visceral and costal. Left lung was pierced on the upper lobe in front by the bullet which traversed through it. The wound of entrance was 1/2" x 1/3" and exit 2/3'x 1/3' at the level of 7th and 8th ribs on the back. The aorta was injured by the bullet and the blood extravasation and accumulated in the thorax."
Thus proving that the deceased met a violent death having been fired at by some assailant.
10. A. S. I. Kamal Hussain Shah appeared as P. W. 5 to depose that while he was posted as A. S. I.
Incharge of Police Post, Injura on 23-3-1969, the father of the appellant Muhammad Nazir lodged a report at the police post about breach of peace and proceedings were initiated by challaning the deceased, his brother Maviz Khan and one Slier Muhammad on one side and Muhammad Nazir father of the accused on the other.
11. The only significant facts which emerge from the state ment of Hayat Muhammad Draftsman P.
W. 6 are that
(a) The Chhab Railway Station is at a distance of half a mile from the scene of occurrence;
(b) The spot is surrounded by habitable houses on three sides.
12. The recovery of the fire arm and the bullets fades into insignificance because, as is evident from Exh. D. C. the examiner of fire-arms in the Central Forensic Laboratory, Lahore found that neither the crime empty nor the crime btillet had been fired from the revolver Exh. P.
1. The weapon said to have been recover ed from the appellant has, therefore, no bearing on or relation with the crime with which we are at the moment concerned and it does not help the prosecution in implicating the appellant.
13. P. W. 10 Khaki Jan, who is the real brother of the deceas ed appeared and supported the prosecution story in all its details. He, however, made a significant admission, that there are 4/5 paths which lead from his house to the railway station. He further admitted that the place of occurrence is not located on the longest route and that all paths are equal in distance. That being so, and there being no evidence that the route adopted by the deceased and P. W. 10 on their return from the railway station was the most frequented one, it is beyond our comprehension as to how the appellant could have known that the deceased would return by this particular route and thus decided to lay in ambush for him in the particular street where from he is alleged to have fired the shot. There is no evidence either that the appellant knew that the deceased would be proceeding to the railway station on this particular morning, nor has anybody said that they met each other while the two brothers were proceeding on their onward journey to the railway station.
This alone makes the story seriously doubtful.
14. Khaki Jan P. W. 10 has also stated that Bahawal Khan and Allah Khan P. Ws. saw the occurrence and these two have duly appeared in the witness-box to support the story of the prosecution. This witness admitted that his house as well as the house of the two eye-witnesses was at a distance of 600 to 700 yards towards north from the scene of occurrence and it is also on record that this habitation had about 3000 houses. There could be no ostensible reason for these two witnesses, who are the neighbours of the appellant and the deceased, to have travelled six to seven hundred yards to be present at the scene with a view to witnessing the occurrence. An explanation was furnished by Bahawal Khan P.W. 11 that on the fateful day at about 2-30 p.m., he bad gone to the Chauk of the village where he had met Allah Khan P. W. They had thence proceeded to the Mandi to make some purchases and it was enroute that they witnessed the incident.
15. Khaki Jan P. W. 10 denied in his cross-examination having stated before the police that he and Amir Khan deceased had reached Chhab Railway Station at 2-30 p.m. The reason was not far to find because if he was there at 2-30 p.m., he must have taken at least 20 minutes to travel back half a mile to the village and from there at least an hour to travel 1 miles to the Lakarmar and some more time to travel the distance of 300 yards from the bus-stand to Kanjur where he met the Head Constable and if we add to it another 45 minutes which he must have spent at the place of occurrence it becomes impossible to accept the version that the F. I. R. was completed at 4 p.m., its recording having taken the Head Constable a good 45 minutes. The fact, therefore, is that the F. I. R. was not recorded in Kanjur at all, but at the place of occurrence and after enough deliberation and con sultation as to the person who was to be implicated and the story that was to be concocted.
This is further clear from the fact that P. W. 11, who is him st If a Foot Constable, had stated before the committing Magistrate that Head Constable Talib Hussain sent the complaint to the S. H. O. through a Foot Constable from the scene of occurrence at about 6 p.m. and that that Foot Constable did not carry anything except the F. I. R,
16. Bahawal Khan P.W. 11 is a Foot Constable posted at Amir Khan the R. A. Bazar Police Post, Rawalpindi, and had arrived the 'gtate previous evening on leave. It is strange that instead of having___________ made the purchases at Rawalpindi, and particularly from the area Mushtcq within the jurisdiction of the police post to which he was attach- Hussain, J ed, where, probably, he might not have had to pay for the things he took away, he chose to wait till he reached his village where he did not have had the variety of choice which he would have exercised in Rawalpindi to make the purchases. It is a highly unconvincing reason to support the presence of Bahawal Khan and Allah Khan at the scene of occurrence. On top of all that, he admitted that he, after all, did not make any purchases that day.
20. Mst. Nazir Jan is his sister. She is married to Nur Muhammad son of Ghulam Muhammad. She instituted a suit for dissolution of marriage against her husband in June 1969, which was dismissed in September 1969. He was asked if it was not a fact that Muhammad Nazir father of the accused had appe ared as a witness in the suit against his sister and he had no hesitation in denying the suggestion. We have, however, before us the statement of Muhammad Nazir D. W. 1 in the case (Mst.
Nazir fan v. Nur Muhammad). Bahawal Khan could not deny that there was only one person by the name of Muhammad Nazir son of Said Amir Pathan aged about 55 agriculturist of Chhab in his village and that he is father of the appellant. This is the very description given of this witness in Exh.
DE. That this witness is prepared to tell lies on the slightest pretext and is prepared to go to any extent to prove that he is an impartial witness so that he can secure the conviction of appellant and thus avenge himself for his father's appearance as a witness in the case against P. W. ll's sister.
He had no difficulty in saying that he did not know the name of his own grand-mother. He did not even know whether Sher Khan, who had been murdered in 1945, was the maternal uncle of his father. He had good reason to tell lies on this point because Sher Khan and his son Raees were murdered in 1945 and the deceased happened to be the son of the latter.
21. This witness Bahawal Khan told the police that the accused had gone towards the west through the lane, but he denied that before the trial Court because that was not the direc tion in which the appellant should have run if he was going to his house as the prosecution would make us believe.
22. This witness admits that the deceased was hit in the main street at a distance of three yards from the house of one Rangin Khan, but it is strange that no person from that locality ever witnessed that incident or come forward in Court to depose about it. This witness even wanted the committing Magistrate to believe that he lived at a distance of only 150 yards from the spot.
He, however, denied having said so when he was confronted with his statement at the trial Court.
There are various material falsehoods which could be recounted from the statement made by this witness at the trial. Suffice it to say that far from inspir ing any confidence, this witness is perjuring persona fide and it is impossible to accept any part of his statement with a view to convicting the appellant.
23. Similarly, P. W. 12 Allah Khan has repeated the same story. After denying all knowledge of a number of relationships, including that of a maternal uncle, he ultimately admitted that his daughter Gulina Bibi is married to Nur Khan, a first cousin of the deceased. He contradicted the foregoing witness by saying that his house was located at a distance of about 100 yards only from the place of occurrence. Although he was also supposed to go to the Mandi to make purchases, he also had to admit that he did not make any purchases that day. Although the foregoing witness could have us believe that both he and P. W. 12 were present in the same lane as the accused, P. W.
12 had decided to make a different statement by admitting that he was not in the same lane in which the appellant was standing when he fired. His statement also bristles with inconsistencies and material discrepancies and he had to be confronted time and again with the statements previously made by him.
24. In this state of prosecution evidence, we have no other alternative but to set aside the conviction and sentence of the accused and to acquit him of the charge levelled against him, which we have already done by a short order dictated by us today. .