' ALLAH BAKHSH, J.--Zaab Din (40) and Said Hussain faced their trial under section 148, P. P. C. For forming an unlawful assembly and committing rioting, under section 302/149, P. P. C. For committing the murder of Siyar Khan (22) and under section 307/149, P. P. C. For attempting at the lives of Zar Khitab, Said Aftab, Mehtab and Muhammad Sarwar in prosecution of their common object with the absconders Imranuddin, Rehmanuddin, Nawab Din, Moazzam Din, Kimkhab Din and Sher Khan on 20-5-1981 at about 5-50 a. m. Within the limits of village Gidar Police Station Kalu Khan. They were convicted under section 302/149, P.P.C. To imprisonment for life and a fine of Rs, 10,000 each or in default to undergo one year R. I., on four counts under section 307/149, P. P. C and under each count each was convicted and sentenced to seven years' R. I. And to pay a fine of Rs, 5,000 or in default to undergo six months R. I. Under section 148/149, P. P. C. Each was convicted and sentenced to one year R. I. The sentences under sections 307 and 148, P. P. C were directed to run concurrently while the sentences under sections 302 and 307, P. P. C. Were to run consecutively. On tealisation 1/4th of the fine was to be paid to the legal heirs of the deceased Siyar Khan and 1/4th was to be distributed amongst the four injured P. Ws. In equal share as compensation under section 544-A, Cr. P. C. The convicts Zaab Din and Said Hussain have now come on appeal whereas Najab Khan father of the deceased has moved revision petition for enhancement of their sentence.
2. The prosecution story is a simple one. It was at about 5-30 a. m. On the eventful day that Zar Khitab (P. W. 7) Said Aftab (P. W. 9) Umar Niqab, Muhammad Niqab, Mehtab, Mir Aftab, Siyar Khan and Muhammad Sarwar were busy in thrashing out the wheat crop in their Hujra when Rehmanuddin, Imranuddin, Zaab Din, Nawab Din, Moazzam Din, Sher Khan, Said Hussain and Kimkhab Din armed with `topaks' appeared and opened fire on them. Zar Khitab, Said Aftab, Mehtab, Muhammad Sarwar and Siyar Khan received the injuries and Siyar Khan succumbed to the injuries at the spot. The injured and the deceased were carried in a tractor trolly to the Police Post Yar Hussain where Zar Khitab lodged the F. I. R. Which was recorded by S. I. Qazi lnamullah (P.
W. 10). He prepared the injury sheets and the inquest report and left for the spot where he prepared the site plan, collected blood-stained earth from various points and took into possession two empties of 12 bore, besides two pellets and cardboard discs in the presence of Ajab Khan.
3. It was on 20-5-1981 at 9 a. m. That Dr. Muhammad Farooq Khan (P. W. 8) conducted autopsy of Siyar Khan and found a group of seven fire arm injuries 1/4" x 1/4' on the left shoulder besides a bruise on the back. The pleura, right lung and blood vessels were found injured and shoulder joint fractured. Death was due to injuries to the heart.
4. On the same day the doctor examined Muhammad Sarwar and found one fire-arm wound of entrance 1/6" x 1/6" on the outer side of left leg below the knee joint. The tibia and fibula were found fractured.
5. Mehtab had a fire-arm wound 1/4" x 1/4' on the left leg above knee joint whereas Said Aftab had the following injuries:-
(1) One fire-arm wound of entrance 1/2" x 1/4" on the outer side of the left leg above knee joint.
(2) One fire-arm wound of exit 1/2" x 1/4" on the inner side of left leg.
(3) One fire-arm wound of entrance I" x i" on the left leg below knee joint.
(4) A fire-arm wound of exit on left leg I" x The injuries were grievous and femur was found fractured.
6. Zar Khitab was found with the following injuries:-
(1) Four fire-arm wounds of entrance each 1/4" x 1/4" on left leg on outer side.
(2) Four fire-arm wounds of entrance on left leg above the knee joint on outer side.
(3) Two fire-arm wounds each 1/4' 1/4" on outer side of leg below knee joint.
(4) Knee joint was found fractured and the nature of injuries was grievous. All the assailants became fugitives from law and their warrants of arrest entrusted to F. C. Shamsher (P.W. 2) could not be executed and proclamation under section 87, Cr. P. C. Were served by him. The appellant Zaab Din was arrested on 22-10-1982 and Said Hussain on 7-3-1983. Their companions are still in abscondence.
7. The motive attributed to the culprits was that on the previous day at `Degar" time they were carrying wheat in a cart and when they passed by the house of Najab the inmates objected whereupon an altercation had taken place.
8. Both the appellants denied the allegations of the prosecution and pleaded not guilty to the charge. They produced no defence;
9. The entire edifice of the prosecution case mainly rests on the testimony of Zar Khitab (P.W.7) and Said Aftab (P.W. 9) who had sustained injuries during the incident. The stamp of injuries on their person established their presence at the spot but would not per se tantamount to a stamp of credence on their testimony. Their statements are to be scrutinised with care and caution in order to determine whether they had spoken the truth. Zar Khitab is the maker of the F.
1. R. And reiterated i.s contents at the trial. He deposed that at about 5-30 a. m. On the eventful day he, Said Aftab, Umar Niqab, Muhammad Niqab, Mehtab, Mir Aftab, Siyar Khan and Muhammad Sarwar were busy in thrashing the wheat in their Hujra when Rehmanuddin, lmranuddin, Zaab Din, Nawab Din, Moazzam Din, Sher Khan, Said Hussain and Kimkha' Din, armed with topaks appeared and opened fire on them. He Said Aftab, Mehtab, Muhammad Anwar and Siyar Khan received the injurie, and Siyar Khan died at the spot. Said Aftab (P. W. 9) supported him and added that after receiving the injuries Siyar Khan and Zar Khitab rushed to the `Kotha' where Siyar Khan died. They have given simples account of the incident but it appears that the incident did not take place in the manner as narrated by them. It may be pointed out that the injured Muhammad Sarwar and Mehtab were not produced by the prosecution whereas none of the persons mentioned in the F. I. R.
Who were busy in thrashing the wheat and were described as eye-witnesses in the site plan was produced for the reasons best known to the prosecution.
10. An F. I. R. Is not expected to be a complete document giving all the particulars of an incident but it is a very important document to show the prosecution case set up at the earliest stage. Zar Khitab had not alleged in the F. I. R. Nor had asserted during the course of his statement at the trial that on receipt of the injuries he and Siyar Khan had rushed to the `Kotha' where Siyar Khan died.
When subjected to cross-examination he denied the suggestion that he and Siyar Khan were fired at inside the `Kotha' of the Hujra during dark hours. It is Said Aftab (P. W. 9) who disclosed that Siyar Khan and Zar Khitab had rushed to the 'Kotha'. A look at the site plan shows that Siyar Khan was at point No, 1 and Zar Khitab at point No, 2 when they were fired at and both are alleged to have rushed to the `Kotha' where Siyar Khan died at point No, 1/A and Zar Khitab lay injured at point 2/A.
No blood was found either at point No, 1 or at Point No, 1/A and no trail of blood was detected in between these points. The absence of blood is no doubt mysterious and it cannot be said with confidence whether Siyar Khan was at point No, 1 when he was fired at. So far as Zar Khitab is concerned he was at point No, 2 when he sustained the injuries and this point is near the godown where the wheat was being stored. He could have easily taken shelter in the godown and his conduct in fleeing towards the `Kotha' does not appear to be natural inasmuch as he had to pass four assailants on his left and four on his right. He was well within their firing range and could have met the same fate as Siyar Khan did.
11. It transpires that an attempt has been made to implicate as many persons as possible in the crime and the prosecution has thrown its net too wide. The number of the accused is not commensurate with the pieces of circumstantial evidence brought on record. One empty of 12 bore was recovered from point C and another from point D. The latter point is behind the 'Kotha' and the former is behind point No, 12 where the absconder Nawab Din is shown to have been present. No empty was recovered from the vicinity of the other points wherefrom the accused had allegedly opened fire. The remarkable feature of the injuries sustained by Zar Khitab, Said Aftab, Muhammad Sarwar and Mehtab is that he had received the injuries on their left leg. They were working together and the possibility that they were fired at from one direction only cannot be excluded. Had as many as eight persons opened fire on them and the deceased from two side there would have been catastrophic casualties. The local and the nature of the injuries restrict the number of the accused and by no stretch of imagination it could be as many as eight. In Mutwakal Shah v.
Muhammad Din and 3 others (1) the fact of two empty cartridges recovered by the Investigating Officer and the charge brought against five persons was taken into consideration and the acquittal of three accused was not interfered with. Moreover, the question of identification assumes significance. The appellant Zaab Din is shown to have fired from point No,
10. The site plan shows that point Nos. 9, 10 and 11 were across the water channel and on the other bank of it were trees. If the culprits had taken shelter behind the trees to avoid their identification it would have surely become difficult for all the injuried persons to have identified each and every one of them without any mistake.
12. Said Aftab endeavoured at the trial to make improvement upon his statement. It appeares that his statement was not properly E recorded by the police under section 161, Cr. P. C. When questioned about his examination by the Police Said Aftab replied that "I was not examined by the I.
0. On the day of occurrence in the P. P. However, I was asked about the occurrence orally." He added that "I was not examined at all by the I.
0. After that first oral examination on the day of occurrence in the P. P. I did not see the I.
0. After first day of occurrence as I was admitted in the hospital." The learned trial Court had a look at his police statement and it was dated 20-5-1981. The Investigating Officer Qazi Inamultah (P.W.10) disclosed that after recording the Murasila and making enquires from the injured witnesses he sent to the hospital and immediately "got their statements reduced into writing in the P. P. In their absence." He added that "the notes of their statement were taken" and, according to him, he destroyed the notes of oral examination of the said P. Ws. The learned defence counsel strenuously contended that the possibility that the statement of the witnesses were recorded by the Investigating Officer in their absence in the manner he wished to mould the prosecution story cannot be excluded. His contention is not without force and substance. It was the duty of the Investigating Officer to record the statements of these witnesses in writing in order to enable the accused to confront them with the statement at the trial.
13. A similar question came up for consideration in Baliram Tikaram Marathe and others v. Emperor
(2) and it was observed that section 162, Cr. P. C. Requires to record statements to be preserved and in serious cases it is as a rule desirable to take down the whole statement of every person who gives important information. The omission of the Investigating Officer to record separately the statements of the persons examined by him during the investigation and destruction of the notes taken by him constitute a flagrant attempt to circumvent the law and thereby to, defeat the right which the law bestows on a person under trial. In State v. Zulfiqar Ali Bhutto and others (3) the Investigating Officer had merely kept note on the basis of which he subsequently reduced the statement in writing. It was observed in paragraph 382 of the judgment that in these circumstances it is not safe to rely upon the statement under section
(1) 1980 SCMR 98 (2) AIR 1943 Nag. 1 (3) PLD 1978 Lab, 523 161, Cr. P. C. In Zulfkar All Bhutto v. The State (1) the obsrvation made at page 477 was the following:- ' The point is elementary, so I would only observe that statements under section 161 of the Criminal Procedure Code do not have to record the minor details of a witnesse's evidence, nut it is the duty of the Police Officer to record every material particular of a witness's statement, and if he does not,- it is the prosecution which must surfer, and material omission in police statement cannot be explained away on the ground that those statements were recorded hurriedly. Any other view would defeat the provisions of sections 161, 1o2 and 2o5-C of tne Criminal Procedure Code, which have been enacted in order to enable the accused to discredit the veracity of prosecution witnesses, if their evidence in Court is different in material particulars from police statement.
The conduct of the Investigating Officer cannot be approved of and the police statement of Said Aftab alleged to have been recorded by hi could, in the circumstances, be discarded. The appellant was greatly prejudiced inasmuch as he was not furnished with the earliest account of the incident narrated by Said Aftab to the police. A doubt raises its hea into one's mind with regard to the earliest account of the incident given by him to the Investigating Officer and the conduct of the latter in destroying the notes and recording the police statement in order to bring th statement of the witness in line with the facts concocted by the Investigating Officer. With exclusion of his police statement we have the statement H of Said Aftab recorded under section 1r4, Cr. P. C. It appears from it that he has not spoken the whole truth and has tried to introduce at th trial certain facts which he has not mentioned in the said statement. He claimed at the trial that he had stated in the statement recorded under section 164, Cr. P. C. That on receipt of the injuries Siyar khan and Za Khitab had rushed into the `Kotha' but when confronted with his magisterial statement these facts were found not so recorded therein. It can therefore, be said that the presence of Siyar Khan and Zar Khitab in the `Kotha' is shrouded with mystery and the incident does not seem t have taken place in the manner alleged by the prosecution. As observed earlier, Zar Khitab did not utter a single word about receiving the injuries and rushing to the `Kotha' thereafter and this fact was introduced for the first time by Said Aftab at the trial in order to bring it in conformity with the site plan.
14. A glance at the site plan shows that the appellant Said Hussain was at point No, 15 at the time of incident whereas at point No, 2 was Zar Khitab and at point No, 3 was Said Aftab. The note at the foot of the site plan shows that from points Nos. 2 to 6 all the points of the accused were visible except points Nos. 12 and 15. Thus, point No, 15 was not visible from points No, 2 and 3 where Zar Khitab and Said Aftab were present and their claim to have seen Said Hussain at point No, 15 falls to the ground. It follows that the presence of Said Hussain at point No, 15 in the light) of the testimony of both these witnesses is extremely doubtful and the benefit of doubt, of course, must go to the appellant Said Hussain. With his exclusion from the venue of crime the presence of the appellant Zaab Din also becomes doubtful. Both the witnesses have not spoken the truth about Said Hussain and we wonder if they can be relied upon as truthful)
(1) PLD 1979 SC 53 witnesses vis-a-vis Zaab Din. Zar Khitab suppressed certain material facts whereas Said Aftab made improvements on his statement. Thei testimony does not inspire confidence, both have falsely implicated Sai Hussain who appears to be an innocent person and have charged many persons, who are interrelated, for the crime. It is observed in Wasiulla v. Mirza Ali and others (1) that where motive was present to include as many persons as accused as possible and one accused at least was, admittedly falsely implicated it was a suspicious circumstance. In -fiab Anwar Jaleel v. The State (2) it was remarked that where innocent persons were found to have been dishonestly implicated in crime the Court was entitled to acquit even those accused who were not proved to have beenL falsely implicated. The false implication of Said Hussain goes a long ways to bring the entire prosecution case under a thick cloud of doubt.
15. The motive attributed to the accused for the crime was that on the previous day they were carrying wheat in a cart and when they passed by the house of Najab the inmates objected whereupon and altercation had taken place. There is no satisfactory evidence to show as to how many of the accused were in the cart and with whom they had altercated and that the altercation went to such an extent that a murderous assault was made on Siyar Khan and others. The particulars of the motive are lacking and prima facie neither the motive has been proved nor it appear to be strong enough for the murderous assault on so many persons. -
16. Both the assailants are said to have absconded soon. After the' incident. Abscondence is a piece of circumstantial evidence but in the absence of other reliable evidence is not sufficient to point to the guilt of the absconders. Moreover, of people do abscond, whether charged rightly or wrongly, and the abscondence of the appellant would not per se be sufficient to connect them with the crime. Taking all the facts and circumstances into consideration we find that the prosecution case is replete with grave doubts and suspicion and the benefit thereof must goo to the appellants. We would, therefore, accept the appeal, set aside their conviction and sentences and acquit them. They be set at liberty if not required in any other case. The revision fails and is dismissed.
(1) PLD 1963 SC 25 (2) PLD 1971 Kar. 156