' GUL MUHAMMAD KHAN, J.-- Sikandar Khan appellant aged 45, was charged alongwith six other acquitted accused, who are now respondents in the above revision petition, to have formed themselves into an unlawful assembly with the common object of committing murder, of Shabbir Hussain Shah and for committing murderous assault on Umar Hayat P.W. And his companions.
While armed with deadly weapons. Shabbir Hussain Shah was killed in this incident but the present appellant only was convicted under section 302, P.P.C. And sentenced to death while the other accused were acquitted. Sikandar Khan has appealed against that order. The learned Sessions Judge, Sargodha, has also sent a reference under section 374, Cr.P.C. For confirmation of the death sentence awarded by him. A revision petition has been filed by the complainant also against the acquittal of the other six accused. All these matters will be disposed of by this order.
2. The occurrence of the incident which took place at 4-00 p.m. On a metalled road in the Abadi of village Nawan Loke, was reported the same day by Umar Hayat P.W.6 at 5-15 p.m. On 10th September, 1979. He stated that there was a criminal litigation going on between the parties. A day earlier i.e, 9th September, when he was going to Shahpur in connection with the filing of nominations in elections he was countered by Muhammad Afzal, Maqsood and the appellant when the parties also exchanged abuses. Thereafter, the other side challenged the complainant that they would settle the account with him. On the day of occurrence the complainant, his brother Muhammad Ashraf and one Muhammad Akram son of Dost Muhammad Khan, caste Pathan, were going from their Dera towards Nawan Loke on a Pakka road, connecting Shahpur Saddar with Sahiwal. They met Shabbir Hussain Shah deceased and his brother Munir Hussain Shah P.W., sons of Muhammad Hassan Shah and they started talking about the elections. When they reached Nawan Loke the accused Sikandar Khan, Lashkar Khan and Maqsood Khan, armed with guns and Ayub Khan, Muhammad Afzal, Amanullah and Nasir armed with Sotas, confronted them. Instantly Nasir Khan Lashkar Khan and Afzal Khan exhorted and also abused, stating the they will take the revenge of the hostility which had gone to the farthest end.
3. Seeing that the assailants were armed, the complainant alongwith his companions ran, for fear of life, to pits on the eastern side of the road. Shabbir Hussain Shah, however, did not move and while turning round asked the assailants not to fire. Maqsood and Lashkar Khas fired one shot each to the complainant and his companions but the same did not hit as they ducked in the pit.
Sikandar Khan fired shot at Shabbir hitting his left eye and eye-brow. He fell down. The complainant and his companion raised hue and cry on which Sikandar and Lashkar Khan fired one shot each and ran away towards Nawan Loke. The whole incident was witnessed by the companions of the deceased.
4. After recording the. First Information Report, Rana Manzoor Ahmad, S.I., S.H.O. P.S., Shahpur got signatures of the complainant and went to the spot. He prepared the injury statement Exh.P.11 the deceased Shabbir Hussain Shah, and despatched the dead body for autopsy. He then commenced the routine investigation of collecting blood-stained earth etc. On the following day he got from Muhammad Sharif F.C., a sealed phial P.4 containing the extracted pellet and the last worn clothes of the deceased. He allegedly searched for the accuse but could not apprehend them. The accused were however, arrested of 18th September. The licensed gun of Sikandar Khan was also recovered on that day but neither the gun nor the pellet were subjected to an examination. No empties were recovered from the spot.
5. Sh. Noor Muhammad Draftsman (P.W.2) prepared the site plae Exh.P.B. On external examination of the dead body Dr. Ghulam Haide Shah, Medical Officer, Civil Hospital, Shahpur Sadar (P.W.1) foun the following injuries:-
(1) A fire-arm wound 1 c.m. In diameter round in shape present of the left side of forehead inner part of left eye-brow. The edged were inverted and were blackened. It was deep to cranial cavity
(2) A fire-arm wound 1/4 c.m. In diameter round in shape present of the inner part of left eye-brow.
The eye ball was smashed. The wound was deep to cranial cavity.
6. In necropsy he noticed that the outer surface of the brain was covered with clotted blood, under injury No,l. The pellet had pierce the frontal lobe of the brain and reached the back of the skull from where it was recovered. Under injury No,2 the corresponding part of the brain was badly damaged.
In his opinion the death was caused due to shock and haemorrhage because of injuries 1 and 2 to the brail which were individually enough to cause death in the ordinary course nature. Both the injuries were found to be anti-mortem, caused by re-arm and the time between injuries and death was a short interval. The edges of injury No,2 were blackened. The injury was caused from ithin a distance of 13 feet, in his opinion.
7. The prosecution supported its case through Umar Hayat P.W.6 and Munir Hussain Shah P.W.7. The other eye-witnesses mentioned in the F.I.R., were given up. Ghulam Hussain A.S.I. (P.W.5) Rana Manzoor Ahmad, retired S.I. (P.W.8) and Sardar Khan S.I./S.H.O. (P.W.9) so appeared to depose about the investigation. In their statements under section 342, Cr.P.C. The accused denied their participation in the occurrence and stated that they have been involved due to enmity between their family and that of Umar Hayat P.W. They further stated at the eye-witnesses are related to him and Munir Hussain Shah is heir partyman. As about the absconsion all the accused including sikandar Khan appellant denied it and stated that they appeared as noon as they learnt that they were wanted by the police. Sikandar than further stated that he produced the gun and the licence before the police on 11th September, 1979, i.e, the next day after the ocurrence but the police wrongly showed the date as 18th September to show some Karvai on their part.
8. The learned Sessions Judge did not believe the eye-witnesses with regard to six accused other than Sikandar Khan and acquitted them. He, however, accepted their version about Sikandar Khan and after finding him guilty sentenced him to death. The learned counsel or the appellant has assailed the conviction of Sikandar Khan on the following grounds:-
(1) There is no material evidence to prove the guilt;
(2) Umar Hayat is a chance witness as he could not be at the spot at the relevant time. In any case, as Umar Hayat supressed his relationship and other relevant facts he tried to come up as an independent witness and, therefore, should not be believed;
(3) Both are interested witnesses and they have motive to involve falsely the appellant and others and, therefore, should not be believed without independent corroborative evidence from unimpeachable source;
(4) When the lower Court did not believe the same witnesses with regard to other six accused, it should not have relied on them with regard to Sikandar Khan appellant without independent and reliable corroboration.
9. The learned counsel has referred to the statement of P.W.6. He stated in his examination-in-chief that they had enmity with accused Afzal and others and were litigating against each other. He also referred to the exchange of abuses on the previous day and the threat that was offered by the other side. He admitted in his cross-examination that they were divided into two rival parties, had enmity and were litigating with each other for the last four or five years. He then gave details of the litigation, all criminal in nature. He admitted being a witness in the case lodged by him against Afzal, Amanullah, Maqsood, Mumtaz etc. Under section 307/148/149, P.P.C. On 5th July, 1978. A cross- case of that very occurrence was lodged by Mansoor Nasir accused against the P.W. Muhammad Ashraf, Muhammad Hussain, Muhammad Akram and one Pervaiz, all related to him. On a raid arranged by him, he admitted, that two sons of Muhammad Afzal accused namely Maqsood and Nasir were got challaned of possession of illicit arms. In another raid arranged on 2nd September, 1977, Nasir accused was challaned but he was acquitted on 26th February, 1979. Another arms case was also registered against the witness for having produced the pistol. The witness further conceded that he and Ashraf were challaned under section 379/411, P.P.C. For theft of revolver of Muhammad Afzal accused and the case was going on. He admitted as correct that Sikandar had taken another wife superseding the sister of accused Muhammad Afzal and Amanullah. He admittedly was an accused in a case for the theft of two bulls registered at the instance of his own cousin at Police Station Malwal.
10. Umar Hayat (P.W.6) denied if he or his brother Khizar Hayat were witnesses in a case registered at the instance of father of the deceased against Ahmad Shah etc. Under section 456/148/149, P.P.C. This case-was about the abduction of the sister of the deceased. Munir Hussain Shah (P.W.7) however, admitted that Khizar Hayat brother of Umar P.W. Had appeared as a Takkar witness in that case from their side. The evidence of Munir Hussain (P.W.7) also showed that he was partyman of Umar Hayat. He admitted that Umar Hayat was a co-candidate from their side in the election in which Fateh Khan was a candidate from the other side. He also admitted that Khizar Hayat brother of Umar Hayat was also a witness in the case lodged by his father for the abduction of his sister. He added that the accused killed his brother taking him as a partyman of Umar Hayat with whom they had enmity.
11. It is thus quite clear from the above that the complainant side and the accused are the two rival parties. They have long record of criminal litigation between them. It is also clear that one party was supporting the other in the election. They are also appearing as witnesses for each other. Even the trial Court refused to believe the evidence of the same witnesses with regard to six others. On the other hand, it was a broadday occurrence, on a metalled road, in an Abadi but no independent witness had been produced. Munir Hussain Shah admitted that there was considerable traffic on it.
It is unbelievable that there are hundreds of houses in the Abadi of Nawan Lok but no one came out of the houses during or after the occurrence. In view of this and the inveterate hostility, caution demanded that some corroborative evidence from an unimpeachable source was sought for to convict the ppellant. That, however, is not forth coming as is discussed below.
12. The learned counsel for the State as well as of the complainant firstly relied on the recovery of gun but the same is of no help. It is licenced gun and was not sent to the fire-arm or other experts for any examination. Even no empty was recovered from the spot so as to matched with it, though Sikandar appellant is stated to have fired two shots. Being a single barrel gun one of the empty must have alieng down and it has not been stated by any one if any empty was yling there or had been removed or taken away by any one. Even the other accused fired but none of their empties was recovered. In any case, as the gun was neither examined nor matched to an empty it afoot be said that it was used in the occurrence. Thus the mere possession of a licenced gun could not be said to be a corroborative piece of evidence supporting participation of the appellant at all.
13. The next piece of evidence relied for corroboration was the alleged absconsion of the accused.
The learned counsel for the State referred to the statement of Rana Manzoor Ahmad S.I. P.W.8, who stated; 'I searched for the accused but they were not available. I got initiated proceedings under section 87/88, Cr.P.C. Against the accused due to their abscondance.' No order of the Magistrate and even no copies of the proceedings for having declared the accused as absconders was produced. The same was even not asserted. No application to the Court was pressed into service either. There was no proof of any search or a search warrant. It was held in Thanghai v. State PLD 1969 Kar. 200 that if there was no legal proof of absconsion adduced there was no absconsion to be considered.
14. Again, admittedly the accused had been arrested on 18th in respect of an occurrence which had taken place on 10th. There was, no proof of search or search warrant. There was a difference of eight days only. It is also not known that the appellant appeared of his own or there was any coercive process issued. It may further be noted that the accused categorically denied their absconsion. Sikandar Khan further stated that he produced his gun on the very next day and that the claim of his absconsion was absolutely incorrect.
15. The prosecution then relied on the medical evidence to support their plea. The seat of the injuries by itself would not offer any corroboration as the same could be seen by any one and the information conveyed to the witnesses even if they had not themselves witnessed the occurrence.
The important aspect of this plea is the distance between the assailants and the victim. According to the site plan prepared by P.W.2 the distance between the assailants and the victim was about 60 feet. Rana Manzoor Ahmad S.I. P.W.8, deposed that he himself got prepared the site plan Exh.P.B.
Through the draftsman P.W.2 and he recorded his note in his hand in red. He further stated that he correctly recorded in his inspection note, prepared at the pointing out of the eye-witnesses, that the accused had fired at the deceased from a distance of 12 Karams. Munir Hussain Shah P.W.7 also admitted that he was present when the draftsman and the police visited the spot. The version given by the eye-witnesses, though not quite specifically but obliquely supports the inspection note.
16. The contention of the learned counsel that Munir Hussain Shah has stated that the deceased was hit by the third fire from the distant of two Karams shot by accused Sikandar appears to be an afterthough and was made in an effort to match it with the post-mortem report The two pellet wounds seem to be the result of one shot even though the edges of only one of them were reported blackened. Both the learned counsel agree on this. According to Modi the distance of such a shot could be about 6 feet as the two pellets entered the body separately but closely and from less than 12 feet as no blackening would generally be thereafter. There is thus no corroboration available even from this part of the evidence.
17. It may further be seen that the presence of the witnesses the spot does not appear to be natural. The story of P.W.6 Umar Hayat is that he and others were coming from their Dera at Ghulam Muhammad Wale to their Dera at Chah Pathanwala. The cross examination shows that two Chahs are connected by a separate pat much away from Nawan Loke, which is generally treaded. The plea the witnesses that there is Nullah which overflows and makes the passage difficult is not convincing unless it was shown that on that particular' day the passage was not fit for traffic.
18. Munir Hussain Shah P.W.7 is the brother of the deceased. He was accompanying the deceased from their village to Adda Wandi to purchase fertilizer which admittedly they did not buy. In the examination-in-chief he deposed that they were going (on the way back) on the road leading towards Sahiwal when they were overtaken by Umar Hayat P.W. And others. In the cross- examination, he stated that they were passing from Nawan Loke, as they were going back, not to their village, but Chah Godewala where they cultivate land of Auqaf Department. He admitted that they would not go to Nawan Loke if they did not have to purchase fertilizer. Apparently, the journey to Adda Wandi for .An inconsequential trip was brought in to justify nearness to the place of occurrence. Again the trip to Chah Godewala seems toJ have been involved for the purpose even though it is not the straight or logical route. In this view of the matter, the version put up by the prosecution is not persuasive. .
19. Umar Hayat P.W.6 admitted that Sikandar appellant had taken another wife superseding the sister of Muhammad Afzal accused. It is thus quite unnatural that Sikandar Khan appellant would join Muhammad Afzal to settle latter's feuds. However, even if Sikandar was with Afzal and they wanted to take revenge, they would not have spared Umar who was a sitting duck, quite unarmed and only a few paces away.
20. The entire evidence on record does not at all inspire any confidence. Seven persons going armed in broad daylight, with a design and meditation, would not spare their arch enemies found unarmed just a few paces away. They had guns and Sotas but none was effectively used against the sitting ducks is unbelievable. The learned Sessions Judge, therefore, did not err at all in acquitting them.
For what has been said above, we are not satisfied that the prosecution succeeded in establishing guilt against the appellant. His appeal is, therefore, allowed and he is acquitted of the charge. The reference sent up by the learned Sessions Judge under section 374, Cr.P.C. Is rejected. Sikandar appellant shall be set at liberty unless his detention is required in some other case. Similarly, the prosecution or the complainant have not shown that the acquittal of the respondent-accused warrants being set aside. The revision petition, is therefore, rejected.