1. NASIM HASAN SHAH, J.--The facts, which form the background of this appeal, are that Mian Azam Shah son of Taimur Shah and his nephews Shahinshah and Fazal Shah sons of Amir Shah were tried together by the Additional Sessions Judge, Charsadda on two counts under section 302/34, P.P.C. And on five counts under section 307/34, P.P.C. The learned trial Judge, by order, dated 19-6- 1979, acquitted all the three accused but on a State appeal filed under section 417, Cr.P.C., the acquittal was set aside so far as Mian Azam Shah and Fazal Shah are concerned. However, the acquittal of Shahinshah was maintained. This is an appeal by the convicts.
2. The allegations against the accused were that on 12th September, 1979, at about 6 p.m. In furtherance of the common intention of them all they committed the murders of Pordil alias Sabir son of Abdul Qayyum and Said Badshah son of Hussain Shah by firing at them and also attempted the murders of Amjad A.I Shah, Pir Mahmood Shah, P.W. 6, Tehmidullah, P.W. 10, Masal Khan, P.W. 7 and Hidayatullah, P.W. 9, in the village Utmanzai.
3. According to the prosecution Mian Azam Shah, respondent, on 12-9-1977 gave beating to Shaukat son of Masal Khan, P.W. 7, a servant of Said Badshah at about Deegarwela. Before Maghrab prayers Said Badshah deceased and Mian Azam Shah were present in the mosque when Said Badshah complained to Mian Azam Shah about this beating. However, an altercation resulted between the two over this matter but the two were separated on the intervention of the people present there.
4. However, as soon as the prayers were over and even before Dowa was completed Mian Azam Shah left for his home. Thereafter, when the Dowa was over, the two deceased, namely, Pordil and Said Badshah also left for their homes. However, while they were still on their way, they were confronted by the two convicts along with Shahinshah who were armed with shot-guns and appeared from the opposite side and started firing at them. On this firing Said Badshah and Pordil were injured and fell down dead while Pir Mahmood Shah, P . W. 6, Tehmidullah P.W. 10, Masal Khan, P.W. 7 and Hidayatullah, P.W. 9 escaped injuries. One Amjad A.I Shah, a passerby, was, however, injured.
5. The medical examination of the deceased showed that Pordil deceased had a fire-arm entry wound 1/4" x 1/4" in dimension on the front of chest on the sternum, while the post-mortem examination performed on the dead body of Said Badshah disclosed the following two injuries:--
(1) Fire-arm entry wound on the back of left knee, --"x --" in size. Exit wound on the lateral side of left knee, size -- --- (2)A fire-arm entry wound -- x --in size on the back in the midline on the first lumbar vertebrae The medical examination of Amjad A.I Shah disclosed fire-arm injuries on thighs.
6. To establish the guilt of the accused, the prosecution produced four eye-witnesses at the trial and also sought corroboration from the abscondence of the three accused.
7. Pir--Mahmood Shah, P.W. 6, who is the eon of Said Badshah deceased, deposed at the trial that on the day of occurrence at about Deegar time there was some quarrel between the minor son of Mian Azam Shah accused and Shaukat, a minor son of Masal Khan, P.W. 7, at which Shaukat was beaten by Mian Azam Shah. Said Badshah deceased made a complaint to Mian Azam Shah in the mosque and some altercation took place between them but the matter was patched up on the intervention of the people present there. After evening prayer time Mian Azam Shah rushed towards his house even without waiting for offering Dowa. The other Namazis, however, offered Dowa and started towards their houses thereafter. Since Said Badshah deceased was an old man, Pordil deceased was giving support to him by holding his hand and they were walking together towards their houses. Pir Mahmood Shah, P.W. 6, along with Hidayatullah, P.W. 9, Tehmidullah, P.W.
8. 10 and Masal Khan, P.W. 7, were following them. When they reached near the house of one Tor Lali the witness saw the three accused armed with Topaks appearing from the front. They started firing as a result of which Said Badshah and Pordil deceased were hit and they fell down on the ground and died. The witness alongwith others took shelter in the Kucha of Toor Dil and escaped unhurt.
9. Amjad A.I Shah, a passerby, was, however, hit. Thereafter, all the three accused decamped. Masal Khan, P.W. 7, is the house tenant of Said Badshah deceased. He also supported the statement of Pir Mahmood Shah, P.W.
6. Hidayatullah, P.W. 9, is the son of the sister of Said Badshah deceased. His statement is also to the same effect as that of Pir Mahmood Shah, P.W. 6, and Tehmidullah P.W. 10.
10. The evidence of Tehmidullah, P.W. 10, is also to similar effect. This witness is also related to the deceased inasmuch as the daughter-in-law of the deceased and the wife of Tehmidullah, P. W . 10, are the sisters.
11. The corroborative evidence was furnished by the circumstance of abscondence of the three accused. Badshah Gul, P.W. 16-- a Foot Constable deposed that he was entrusted with the warrants of arrest against the three accused under section 204, Cr.P.C., and he searched for them in their village and the surrounding area but could not find them. He, therefore, returned the warrants un-served. These warrants were formally proved by him at the trial. The same witness effected the service of proclamation issued under section 87, Cr.P.C. Against the three accused and deposed at the trial about effecting service through proclamation upon them.
12. When examined, all the accused denied their guilt. They, however, admitted previous enmity. Mian Azam Shah when examined in Court admitted that on the day of the occurrence Shaukat, the minor son of Masal Khan, P.W. 7, had a quarrel with his own son and he gave beating to said Shaukat. He, however, did not admit that Said Badshah deceased complained to him about this incident or that he left the mosque immediately after Namaz without offering Dowa. He denied the fact of main occurrence as well. When asked to explain his abscondence he stated that he had a Seri land where he used to go and live there and that he did not abscond. When questioned as to why he was charged he made the following statement:-- "On the fateful day, I had given beating to the son of Masil P.W. Who is the tenant and servant of Mahmood Shah P .W. Son of Said Badshah deceased. Mehmood Shah P.W. Is a wealthy and influential man, who on learning about my having beaten his tenant's son, collected people and arranged an attack on the houses of my nephews and started firing at them. His father Said Badshah deceased who had taken his evening, meals in his house after the Aftari came out entreating Mehmood Shah and his partisans to give up the attack, met his end by shots fired by Mehmood Shah and his party. Pordil likewise received fatal injury from the hands of Mehmood Shah and his partisans. Amjad A.I who was also attracted to the spot, also got injured. Amjad A.I had not charged me but instead has admitted cross firing at the time of occurrence. I am innocent and falsely charged."
13. Fazal Hussain Shah accused denied his guilt and about his abscondence stated that he had landed property in village Fathma, District Mardan and that he used to live there and did not abscond.
14. The learned trial Judge disbelieved the testimony of all the four eye-witnesses. As regards the evidence of abscondence he observed that this conduct of abscondence is not sufficient to establish the guilt and acquitted all of them. The reasons for so doing were summed up in these words:-- "In a nutshell, the evidence of interested witnesses out of whom the presence of two eye-witnesses is doubtful on the spot and the rest belied by medical evidence, the non-recovery of the blood from the spot, the non-examination of P.W. Amjad A.I Shah, the presence of the bullets marks at the window and door frames of the house of P.W. Mehmood Shah and keeping it intentionally secret from the investigation and the recording of the F.I.R. After the spot inspection are some of the distinguishing features of this case, which cast high doubts over the prosecution story."
15. On the State appeal, before the High Court the learned Judges of the said Court agreed with the learned trial Judge that the testimony of Masal Khan, P.W. 7, and Hidayatullah, P.W. 9, could not safely be accepted. However, they opined that the evidence of Pir Mehmood Shah, P.W. 6 and Tehmidullah, P.W. 10, could be accepted and further considered that the abscondence of the accused sufficiently corroborated their statements so far as the guilt of Fazal Hussain Shah and Mian Azam Shah was concerned. Shahinshah accused was given the benefit of doubt because in his case the corroborative evidence of absconsion was not fully established.
16. We have heard Mr. Muhammad Sadiq Warraich on behalf of the appellants and Mian Muhammad Ajmal, A . A . -G . , N . -W . F . P . On behalf of the State and also gone through the record with their assistance.
17. The learned trial Court while disbelieving Pir Mehmood Shah, P.W. 6, and Tehmidullah, P.W. 10, had, inter alia, observed:-- "Both of them are, therefore, not only interested witnesses but their evidence as well as of other two witnesses namely P. Ws. Hidayatullah and Masai Khan whose presence on the spot is doubtful are belied by the medical evidence. According to all the eye-witnesses, namely, Pir Mehmood Shah, Hidayatullah, Tehmidullah and Masai, they and the deceased were going to their homes when the accused appeared from the opposite direction and started firing at them. But according to the medical evidence, deceased Said Badshah had received injuries from the back. In other words, the occurrence has taken place not in the manner as alleged by the prosecution."
18. This finding of the learned trial Judge was reversed by the High Court in just one short sentence by observing:-- "The mere fact that the injury was not on the front portion of the body of Said Badshah deceased would not discredit the testimony of the two witnesses."
19. We do not think that this was a sufficient treatment of a most important finding of the trial Court, especially in an appeal against acquittal under section 417, Cr. P C On the other hand, we are inclined to agree with the learned trial Court that the occurrence had indeed taken place in a manner different from that deposed to by the P.Ws. And that the eye-witness could not be relied upon.
20. We would, accordingly, set aside the judgment of the High Court and restore that of the learned trial Court The appellants shall, accordingly, be set at liberty forthwith if not wanted in any other case.