' MUHAMMAD ISHAQ KHAN, J.-Ghulam Habib alongwith his son Hazrat Habib, Muhammad Shafique and Muhammad Habib sons of Saifoor Khan residents of Sokhta-Banda, Bazargai Tehsil Swabi District Mardan were tried by Sayed Yahya Zahid Gillani, Additional Sessions Judge, Mardan at Swabi on charges under section 302/30. /324/34, P. P. C. Registered against them vide F. I. R. No, 308, dated 17-7-1981 of P. S., Kalu Khan. The learned Additional Sessions Judge, vide order dated 11- 4-1985, acquitted Muhammad Habib, Hazrat Habib and Muhammad Shafique from all the charges levelled against them. He, however, convicted Ghulam Habib accused under section 302, P. P. C.
And sentenced him to death, to be -hanged by the neck till his death and to pay a fine of Rs, 10,000 in default of which he shall undergo one year R. I. Half of the fine, it was ordered, on realization was to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr. P. C.
Ghulam Habib was further convicted under section 307, P. P. C. For ineffective tiring at P. Ws. And was sentenced to three years' R. I. And a fine of Rs, 5,000 in default of payment of which he was to undergo further six months' R. I. The trial Judge, however, acquitted Ghulam Habib accused of the charge under section 324/34, P. P. C.
2. The convict Ghulam Habib has preferred this appeal against his conviction and sentences and there has been also filed a Murder Reference No, 7/1985 for the confirmation of death sentence passed upon the appellant. By this single judgment we propose to dispose of both the appeal as well as the Murder Reference.
3. Briefly stated, the facts of the case are that on the basis of a report Exh. P. A. Registered at P. S., Kalu Khan, based on the report of Jan Muhammad complainant Exh. P. A./1 on the day of occurrence at `Deegan-qaza-wela' there was a dispute in between Ghulam Habib appellant on one side and one Shamsul Qamar of Wand Sokhta Bazargey on the other and in consequence of that both the parties had ex:hanged firing on each other during which many people of the surrounding areas collected for bringing pacification; that Shamsul Qamar and his party took shelter in their house while Ghulam Habib and his party encircled the house of Shamsul Qamar and continued the firing ; that in the meanwhile Said Nawab deceased came from the side of Maira where he had gone for grazing his cattle; that Ghulam Habib appellant fired at Said Nawab who got injured ; and that the occurrence was witnessed by Kacbkol, Ramzan and Sher Zaman of village Nandrak Jalaloona.
4. At the trial the prosecution examined as many as fourteen witnesses out of whom P. W. 10 is Jan Muhammad complainant and P. Ws. 11 and 12, namely, Ramzan and Sher Zaman are the two alleged eye-witnesses of the occurrence. P. W. 9 is Doctor Shahbaz while rest of the witnesses are formal and police official.
5. Doctor Shahbaz Khan (P. W. 9) was Medical Officer, Incharge Civil Hospital, Nowsbera during the days of occurrence. He stated at the trial that on 18-7-1981 at 8-00 a. m. He condurted the autopsy on the dead body of Said Nawab deceased aged about 15 years and found the following injuries on external examination -
(1) A shattered wound on left side skull about 6 x 3' and brain matter out. The bullet has passed out through the wound. Left parietal bone fractured. Brain tissue injured. Stomach empty.
' In the opinion of the Doctor the death had occurred due to haemorrhage and shock caused by firearm causing injuries to brain tissue. Probable time between injury and death was within three hours and between death and post-mortem examination within twelve hour's.
6. Jan Muhammad (P. W. 10) complainant, father of the deceased, . Narrated the incident at the trial as given in his First Information Report referred to above. P. W. 11 Ramzan posing himself to be an eye-witness stated that on the day of occurrence he alongwith P. W. Kachkol (abandoned witness) was sitting in the mosque at late Deegar time when on hearing the report of fire shots they came out of the mosque and heard the people saying about firing in between Ghulam Habib and one Shamsul Qamar. They started towards the houses of said persons and met Sher Zaman on the way. He saw Said Nawab, his nephew, coming from Maira with cattle. The witness saw Ghulam Habib appellant, Muhammad Habib, Muhammad Shafique and Hazrat Habib, the acquitted accused, alongwith other persons duly armed with Topaks. The elders present for pacification stopped Shamsul Qamar and Ghulam Habib alongwith their party from firing. They took companions of Ghulam Habib appellant but the appellant succeeded to release himself from the elders and came out from a narrow street near School towards the canal side. The appellant aimed his gun towards the P. W. And others and the P. W. Raised his hand signalling the appellant not to fire but in spite of that he fired two shots at the witness and his companions with which Said Nawab deceased was hit on his head and fell down. The appellant then decamped from the spot and a cot was brought in which Said Nawab deceased, then injured, was placed and taken to his house but on the way father of the injured met them who was informed of the incident. Sher Zaman (P. W. 12) is the second alleged eye-witness who had narrated the occurrence almost in the same manner as was done by P. W. 11 Ramzan.
7. At the close of the prosecution evidence the appellant alongwith the acquitted accused was examined under section 342, Cr. P. C. They took the plea of bare denial but produced no defence.
After hearing the arguments of the learned counsel for the parties, the trial Judge passed the impugned judgment.
8. We have heard Mr. Muhammad Zahurul Haq, Bar-at-Law for the appellant and Mian Muhammad Ajinal, Assistant Advocate-General for the State and have also perused the record with their assistance.
9. The learned counsel for the appellant took us through the various statements of the witnesses particularly the statements of P. Ws. 10, 11, 12, 13 and 14. First of all we would like to refer to the statement of P. W. 13, namely Qazi Inamullah S. I. He stated at the trial that during the days of occurrence he was Incharge of P. P. Yar Hussain and on receipt of copy of F. I. R. He started investigation of the case. He prepared the site plan Exh. P. B at the pointation of the P. Ws. And took into possession blood-stained earth from the place where Said Nawab deceased was allegedly injured and sealed the same vide memo. Exh. P. C.
2. He also recovered five empty shells of 7 m. m. Exh. P. 1 to Exh. P. 5 and an empty shell of 12 bore Exh. P. 6 vide memo. Exh. P. C. He also took into possession three empty shells of 7 m. m. Exh. P. 7, Exh.
P. 7/1 and Exh. P. 7/2 vide memo. Exh. P. C.
1. This witness recorded the statements of the eye-witnesses and the witnesses to the recovery memos, and also conducted the house search of the accused. In cross-examination this witness clearly admitted that be does not remember the time when he received the copy of F. I. R. From the concerned Police Station. At that time he was at village Dobian where-from he proceeded to the spot and reached ,there at 3-45 a. m. The P. Ws. Were present there. He further admitted that in the copy of F.
1. R. Received by him there was specific mention of cross firing between Ghulam Habib on the one side and Shamsul Qamar on the other. He also admitted it to be correct that in the statements of P.
Ws. Ramzan and Sher Zaman it is stated that Shamsul Qamar alongwith his companions Umar, Sher Gul and Sher Khaney were armed with Topaks and that there was cross firing between them on the one side and Ghulam Habib and his party on the other. He also admitted the fact that Sher Khaney son of Zabit Khan is the maternal-uncle of Shamsul Qamar. He further admitted that neither Shamsul Qamar nor his brother Umar nor any of his above-mentioned relations had come to P. P. Yar Hussain to make report regarding the incident of firing against the accused. He further admitted it to be correct that if a report is received to the effect that there was cross firing between `A' and 'IV then it is a cognizable offence but he did not investigate the case from the angle of the cross firing. He also frankly admitted that he had not sent the empties of 7 m. m. Recovered from the spot to the Arms Expert for the purpose of determining as to whether those were fired from one gun or different guns.
10. Coming to the statement of P. W. 14, namely Haji Gul, S. H. O. Police Station Batagram, we find that he had stated at the trial that during the days of occurrence he was posted as S. H.
0. P. S. Akora Khattak. On 17-7-1981 at 2100 hours P. W. 10 Jan Muhammad complainant came to P. S. Akora and lodged the report which he entered in daily diary at serial No, 7 on 17-7-191; that after recording the same it was read over and explained to him, who thumb-impre sed the same in token of correctness; that Said Nawab it jured was also brought to the P. S. In a motor car and the witness prepared his injury sheet Exh. P. D. And referred him to Civil Hospital, Nowshera under the escort of Sabar Gul F. C. For medical treatment. The witness further stated that he sent a copy of the said report to P. S. Kalu Khan as the occurrence had taken place within the territorial jurisdiction of that Police Station. In cross-examination he dearly admitted that in the report recorded by him there was clear mention of cross firing between the two parties. He also admitted it to be correct that in the report recorded by him no weapon of offence was mentioned with which Said Nawab then in injured condition was hit, therefore, he did not mention any weapon of offence in the injury sheet Exh. P. D. Of Said Nawab. He further admitted that no body present in the Police-Station offered to give evidence either regarding the incident or about the fact to have seen the occurrence excepting the report of first informant. The above resume of the statement of the Investigating Officer clearly shows that P. W. 13, namely, Qazi Inamullah has not conducted the investigation of the case in a fair manner, rather he has miserably failed to discharge his official duties by not taking any action against Shamsul Qamar and his companions with regard to the cross firing.
11. The learned counsel appearing on behalf of the appellant then took us to the recovery memos.
Exh. P. C. 1 and Exh. P. C. 2 and argued that no date has been mentioned on these two memos., therefore, it is not clear when the empties of 7 m. m. Exh. P. 7/1 and Exh. P. 7/2 were taken into possession by the Investigating Officer and when the blood-stained earth was sealed into a parcel.
The learned counsel thus vehemently argued that the recovery of empties and blood-stained earth has not been proved by the prosecution. We have also perused these two memos. 'and we find no date thereon with the result that the argument of the learned counsel appearing for the appellant holds water. The learned counsel for the appellant laid great stress on the site plan Exh. P.
B. Prepared at the pointation of eye-witnesses and argued that eighty per cent. Of the evidence based on site plan has not been produced and has been withheld by the prosecution. We have perused the site plan and, keeping in view the evidence on record we find that there is no mention of the evidence regarding the points mentioned in the site plan i. e. Points Nos. 1, 2, 1/A and 2/A. It is also important to note here that P. W. Kachkol whose name is mentioned throughout the evidence on record was not produced at the trial and was abandoned by the prosecution for best reasons know to them. It is the case of the prosecution that the deceased Said Nawab was fired at by Ghulam Habib appellant at point No, 10/A of the site plan and blood-stained earth was taken into possession by the Investigating Officer from this place while the appellant was admittedly present at point No, 3/B from where he allegedly fired two shots at Said Nawab deceased who was at point No, 10/A and hit him. The distance between points Nos. 3/B and 10/A according to the site plan, is 230 feet. It is also the case of the prosecution that point No, 7 is the place from where the witnesses saw the appellant Ghulam Habib and the three acquitted accused alongwith 10/12 other persons who were firing at the 'Dere of Shamsul Qamar which is situated at point No, 1/A in the site plan. It is in the statement of P. W. 11 (Itamzan) that the elders of the village who were present at the spot after hearing the report of fire shots, for pacification, had succeeded to stop Shamsul Qamar and his companions on one side and Ghulam Habib and his companions on the other side from firing but Ghulam Habib appellant succeeded to release himself fro them and came out from a narrow street near school towards the canal side i. e. At point No, 3/B in the site plan and from there he fired two shots at the deceased who was present at point No, 10/A. It is also admitted in the evidence that Sher Khaney is the maternal-uncle of Shamsul Qamar whose house is adjacent to Ghulam Habib appellant and also to points Nos 7, 8, 9 and 10. The site plan shows that from point No 7 Ghulam Habib appellant was firing at the `Dhera' of Shamsul Qamar and from where he went to a narrow street and reached at point No, 3/B and fired from this point at the deceased who was present at point No, 10-A. Had the appellant been present at point No, 7 and proceeded to point No, 3/B he had to pass in front of the house of Sher Khaney who was. According to the evidence on record, presently duly armed in his house, then the appellant should not have been spared by the said Sher Khaney from being tired at. Over and above, the distance given in between different points and particularly between points Nos. 3/B and 10/A is such that a shot being tired from point No, 3/B would not cause wound of 6" x3 to a victim present at point No, 10/A. The learned counsel for the appellant vehe. Mently argued that as tnere was cross firing, therefo e, this wound could, have been caused by a stray bullet. The witnesses were allegedly present at the time of occurrence at points Nos. 7/B, 8/B and 9/B which are admittedly at a distance of 225 feet, 230 feet and 235 feet respectively from point No, 3/B where the appellant Ghulam Habib was allegedly present at the time of firing at the deceased. The learned counsel thus argued that it was not possible for the witnesses to have correctly identified the culprit from such a long distance with the result that the prosecution case is mainly shattered by the site plan Exh. P. B. Which was prepared at the instance of the P. Ws.
12. Lastly the learned counsel for the appellant came to the factum of abscondence and argued that keeping in view the evidence on record the prosecution has miserably failed to connect the accused-appellant with the commission of offence and as such mere abscondence of the appellant would not be sufficient to sustain conviction on a capital charge of murder. He also argued that on the same evidence co-accused of the appellant have been acquitted by the trial Court. In support of his argument he cited a case-law on the point of abscondence. The first authority in this respect is Farman Ali and 3 others v. The State (1) wherein their Lordships of the Supreme Court have held that abscondence by itself would be of no avail to prosecution in absence of any other evidence against absconding accused. The next authority relied upon by the learned counsel is Hashmat All v. The State (2) wherein this Court has held as under :- "Abscondence of accused charged with murder cannot be used as piece of evidence against him.
Such a conduct can be equally consistent with his guilt or innocence. Mere absondence of accuse would be of no avail to prosecution."
' The learned Assistant Advocate-General could not controvert the argu ments of the learned counsel for the appellant.
13. In view of the above discussion, we are of the firm view that the prosecution has failed to prove its case against the appellant. We would, therefore, allow this appeal, set aside the conviction and sentence of the appellant and acquit him of the charges. He shall be set at liberty forthwith if not required in any other case.
14. As the appeal of the appellant succeeds, the Murder Reference is answered in the negative.
(1) PLD 1980 A C 207 (2) 1984 P Cr. L J 1234