' MUHAMMAD ISHAQ KHAN, J.-Obaiduilah son of Saadullah and Abdul Qadus son of Zarin, residents of Maira Turangzai, Tehsil Charsadda, appellants herein, stood their trial in the Court of Mr. Muhammad Farooq Khan, Additional Sessions Judge II, Charsadda, on a charge under section 302/307/34, P. P. C. Registered vide F. I. R. No, 158, dated 14-8-1984 of P. S. Umarzai. They were found guilty under section 302/34, P. P. C. And were sentenced to imprisonment for life and a fine of Rs, 5,000 or in default to undergo one year further R. I. Each. They were also convicted under section 307/34, P. P. C. For ineffective firing at the P. Ws. And were sentenced to 3 years R. I. Each with a fine of Rs, 2,000 or in default to undergo further imprisonment of 3 months R. I. Each. All the sentences were ordered to run concurrently vide judgment dated 9-10-1985.
2. Dissatisfied with the above conviction and sentences both the convicts have come up to this Court is appeal against their conviction and sentences. Laiq Shah, complainant, has also tiled Criminal Revision No, 4 of 1986 for the enhancement of the sentence of life imprisonment to that of death and also for the enhancement of the amount of fine. By this judgment we propose to dispose of both the appeal as well as the revision.
3. Briefly stated the prosecution case is that complainant Laiq Shah lodged a report on 14-8-1984 in P. S. Umarzai stating therein that on the day of occurrence early in the morning he alongwith his brother Gul Shah, sons Jehanzeb and Muslim went to weed the maize crop at his land ; that the moment they were going to start the weeding, Yousaf alias Sheeno and his brother Abdul Qadus, sons of Zarin, Obaidullah and Muhammadullah, sons of Sadullah, residents of the same village appeared from the side of Ghundai Kamar armed with rifle and guns ; that all the four persons started firing on them ; that accused Yousaf and Muhammadullah fired effectively on Muslim, son of the complainant, who was hit with their firing and fell down dead ; that the complainant alongwith his brother Gul Shah and his other son Jehanzeb took shelter in a nearby dry water channel and thus escaped unhurt. The accused after the occurrence decamped from the spot and after their departure the complainant alongwith others picked up the dead body of his son Muslim (deceased), placed him on cot and then placing the cot in a suzuki came to the police station for lodging the report.
' The motive for the offence as mentioned in the First Information Report is that in the recent month of the Ramzan the buffalo of Obaidullah accused had given a head blow to Muslim deceased who in return had given beating to the buffalo on which a quarrel followed by grappling ensued between Muslim deceased and Obaidullah accused but no report was made about this incident.
The four accused on the day of occurrence getting opportunity fired on Muslim deceased as a result of which he was hit and died. It may be mentioned here that accused Yousaf and Muhanimadullah are still absconders. Obaidullah and Abdul Qadus accused were, however, arrested and challaned under section 302/307/34, P. P. C. To which they pleaded not guilty and claimed a trial. The prosecution in all examined 10 witnesses including P. W.
6. Dr. Mubarak Hussain who conducted post-mortem examination on the dead body of Muslim and found the following injuries :-
(1) A blown up wound of fire arm on the right side of chin charring present size 2" x 3".
(2) An entrance wound of fire-arm over the posterior aspect of middle of right upper arm, charring present.
(3) Two exit wounds of fire-arm on the front of right shoulder each x f" about 2" apart corresponding to Wound No, 2.
(4) Two exit wounds of fire-arm on the back of right shoulder about 2" apart each f" corresponding to Wound No, 2.
(5) An exit wound of fire-arm at the route of right side of neck corresponding to Wound No, 2.
(6) A stab wound over right lower chest over anterior exillary line rxr.
(7) Another stab wound on the back of right middle chest 1" x i".
(8) A graze wound of fire-arm over front of left upper chest 1" x
(9) An entrance wound of fire-arm over back of left middle chest y x I". One pellet recovered from the anterior angle of left axilla corresponding to Wound No, 9.
(10) An entrance wound of fire-arm over medial aspect left lower part of thigh x
(11) An exit wound of fire-arm about 3" below to Wound No, 10 I" x at the same level corresponding to Wound No, 10.
(12) An entrance wound of fire-arm over the front of middle of left leg i" x f". One pellet recovered from the posterior aspect of middle of left leg corresponding to Wound No, 12.
(13) An entrance wound of fire-arm on the lateral aspect of middle of left leg Y x . Two pieces of pellet recovered from the front of middle of left leg corresponding to Wound No, 13.
(14) An entrance wound of firm-arm over front of middle of right thigh y x Y. One pellet recovered from the medial aspect of upper part of right thigh corresponding to Wound No, 14.
(15) An entrance wound of fire-arm over front of lower part of right thigh i" x v.
( lb) An exit wound of fire-arm about 1" medial to Wound No, 15 y x I", corresponding to Wound No, 15.
(17) An entrance wound of fire-arm over lower part of lateral aspect of right fore-arm I" x
(18) An exit wound of fire-arm over front of middle right fore-arm x I", corresponding to Wound No, 17.
(19) An entrance wound of fire-arm on the middle of front of right fore-arm j" x
(20) An exit wound of fire-arm over medial aspect of upper part of right fore-arffi x Y corresponding to Wound No, 19.
' On internal examination both thoracic walls, right pleurae, right lung and blood vessels were found injured. Abdomen Diaphragmatic walls, peritoneum, mouth and phyrnx, diaphragm and liver, muscles at the site of injuries were also found injured, while upper part of right humerus and mendible and maxillary bones were found fractured. In the opinion of the doctor the death was caused of shock and haemorrhage due to the above injuries. Probable time between the injury and death, according to the doctor, was within half an hour and the time between death and postmortem examination was 3 to 4 hours.
4. P. W. 1 is Fazal Subhan, D. F. C. No, 1331 who was entrusted with the warrants of arrest under section 204, Cr. P. C. Against accused Obailullah, Abdul Qadus, Muhammadullah and Yousaf but they were not found and thus he returned the warrants Exh. PX/1 to Exh. PX/4 unserved. P. W. 2 is Ismail, son of Muhammad Yousaf, who identified the dead body of deceased Muslim. P. W. 3 is Laiq Shah, complainant, father of the deceased, who furnished eye-witness account of the occurrence.
Similarly, P. W.
4. Gul Shah, uncle of the deceased and P. W. 5 Jehanzeb, brother of the deceased, also appeared as eye-winesses. P. W. 7 Abdul Sattar, A. S. I. Had partly investigated the ease and P. W. 8 Sabaz Ali, F. C. Had escorted the dead body of the deceased from the Police Station to the mortuary and brought back his clothes and a vial etc. P. W. 9 Muhammad Israr Khan had also partly investigated the case. P. W. 10 Mukarram Shah and P. W. 11 Fatehur Rehman are the witnesses to the recovery memos. Exh. P.C./1, Exh. P. C./2 and Exh. P.C./3. It is important to note that both these witnesses have resiled from their statements at the trial. The last P. W. Is Jehanzeb S. I. Who also partly investigated the case.
5. We have heard the learned counsel for the appellants and the Law Officer for the State.
Deceased Muslim is the son of the complainant Laiq Shah while P. W. Gul Shah is the uncle of the deceased and P. W. Jehanzeb is the brother of the deceased. Likewise absconder Yousaf is the brother of appellant Abdul Qadus and appellant Obaidullah is the brother of absconder Muhanundullah. Absconder Yousaf and appellant Abdul Qadus are the sister's sons of appellant Obaidullah and absconder Muhammadullah. Learned counsel for the appellants vehemently argued that in the F. I. R. Only rifles and shot-guns have been mentioned by the complainant which were used by the two appellants and the two absconders in the commission of the offence but P.
Ws. 3 and 4 have attributed pistol to Abdul Qadus appellant at the trial. Similarly, role of effective shots had been attributed to Muhammadullah and Yousaf absconders whereas at the trial P. W. 5 Jehanzeb had collectively attributed the shooting to all the four accused. The learned counsel further argued that the water channel shown in the F. I. R. Was not so deep or wide as to save the P.
Ws. He also argued that there is a difference of half an hour or one hour between the death of the deceased as given in the medical report and as given in the statements of the eye-witnesses. The learned counsel also argued that as the alleged empties recovered from the spot were not sent to the Arms Expert for opinion, if those were fired from one gun or different guns, also badly reacts on the prosecution case and lastly he argued that the deceased had two stab wounds on his body which have not been explained by the prosecution.
6. We have given our anxious consideration to the above arguments of the learned counsel for the appellants and are of the view that the sam hold water. In the F.
1. R. Laiq Shah complainant has simply stated tha they were to start to weed the maize crop when in the meanwhile Yousa alias Sheeno and Abdul Qadus sons of Zarin, Obaidullah and Muhammad ullah, sons of Saadullah came armed with rifle and banadeeq and simultaneously all the four started firing at them and that with the shots o Yousaf and Muhammadullah (absconders), Muslim (deceased) was bit and died on the spot. It has not specifically been mentioned that with the shots of both the appellants the deceased was also hit. On the other hand A it has been stated at the trial by the alleged P. Ws. That the shots of the appellants proved abortive. Moreover, a look at the statement of P. W. 6 Dr. Mubarak Hussain clearly shows that the deceased has got 2 stab wounds (Wounds Nos. 6 and 7), one over the right lower chest over the anterior exillary line fx I" and the other on the back of right middle chest 1' x 1. The prosecution has miserably failed to give any explanation for these two wounds because throughout the case they have attributed firearms to the two appellants and the two absconders with which they have fired at the deceased, although at the trial they have made some improvement and have also introduced pistol shots through the mouth of P. W. 5, yet there is no mention about the stab wounds and the same goes un-explained.
Similary, P. W. 10 and P. W. 11, who are the admitted marginal witnesses of the recovery memos.
Have disowned all the fou recovery memos. And have specifically stated that in their presence nothing was recovered from the spot. This conduct on the part of the prosecution witnesses goes a long way to prove the recoveries from the spot doubtful. Another important aspect of the case is that the alleged empties recovered from the spot were not sent to the Fire Arms Expert to verify whether those were fired from one or different weapons.
7. The mere abscondence of the appellants, as we know, is not sufficient by itself to record conviction against them on a capital charge of murder. It has been held by the superior Courts in so many cases that abscondence by itself would be of no avail to prosecution in absence of any other evidence against the absconding accused. In this case the alleged 3 eye-witnesses are near relations of the deceased i. e. P. W. 3 Laiq Shah is the father of the deceased, P. W. 4 Gul Khan is the uncle of the deceased and P. W. D Jehanzeb is the brother of the deceased. It was the bounden duty of the prosecution to have proved their case through the evidence of disinterested witnesses which is totally lacking in the present case. The learned State counsel could not controvert the forceful arguments of the learned counsel for the appellants. Under these circumstances, we are of the opinion that the prosecution has miserably failed to prove its case against the appellants beyond reasonable doubts, the benefit of which would only go to the appellants.
8. The net result of the above discussion is that we would accept this appeal, set aside the conviction and sentences of both the appellants and D would acquit them. They shall be released forthwith if not wanted in any other case.
9. As the conviction of appellants has been set aside in appeal, therefore, the Criminal Revision for enhancement automatically fails and is hereby dismissed.