' SARDAR MUHAMMAD DOGAR, J--F.I.R. (Ex.PF) was registered at Police Station Qamar Mashani, district Mianwali, on 29-7-1983, at 2 a.m., on the statement of Fateh Khan (P.W.11).
' According to the F.I.R., the complainant was sitting in his house at 7.30" p.m. On 28-7-1983 alongwith his son Muhammad Aslam, Dilasa Khan and Madad Khan P.Ws. Suddenly Muhammad Amir, armed with a rifle, Alam Khan, Abdur Razzaq, Abdus Sattar and Ratas Khan, armed with 12- bore guns (co-villagers) appeared from southern side. Muhammad Amir, after giving a Lalkara, fired a shot from his rifle, which struck on the forehead of Mst. Amiran Khatun, daughter of the complainant, while she was standing in the door inside the Kotha. She fell down and died. On repetition of Lalkara by Muhammad Amir to his companions that none of Merakheils should be spared, all the accused including Muhammad Amir, started firing on the complainant and the P.Ws, while raising Lalkaras. The complainant and his companions ran into the Kotha. In the meantime, Khan Zaman P.W., a nephew of the complainant, came there armed with his licensed gun and started firing in return. Whereupon all the accused went away raising Lalkaras towards the east.
' Motive for the occurrence was that a month prior to this occurrence Ataullah, a nephew of Muhammad Amir had suffered injuries, as a result of somebody's firing and the accused suspected that the complainants had injured him. Muhammad Amir had not got the case registered, in order to avenge the occurrence.
2. Zawar Hussain, S.I.(who was A A.S.I. At the time of recording of F.I.R.), after recording the F.I.R.
Proceeded to the spot, where he arrived at 6 a.m. On 29-7-1983. After preparing the inquest report (Ex.PM) and injury statement (Ex.PN), he despatched the dead body for post-mortem examination.
During spot inspection he collected three 303 empties vide memo. Ex.PG. Blood-stained earth had also been collected by him.
Ratas Khan was arrested by him (Zawar Hussain P.W.13) on 21-9-1983 from Chachali Wahn.
Unlicensed gun (P.7) alongwith cartridge (P.8), which the accused was carrying with him, were taken into possession vide memo. Ex.PK.
' As the other accused were not traceable, he obtained their warrants of arrest (Ex.PE/5 to 8) and handed over the same for service to Ata Muhammad FC. On Ata Muhammad making statement of his failure to effect service before the Tlaqa Magistrate, proceedings for declaring them absconders in accordance with the provisions of section 28/88 Cr.P.C. Were taken. In spite of several raids, the S.I. Failed to effect the arrest of the accused.
' Alam Khan was arrested on 23-12-1984 by Sher Muhammad, S.I./S.H.O. (P.W.12). Gun (P.4) alongwith five live cartridges (P.5/1-5), which the accused was carrying at the time of his arrest, were also taken into possession vide memo. Ex.PC.
' After completion of necessary investigation, challan was put to court against Ratas Khan and Alam Khan appellants, while others were shown absconders.
3. At the trial prosecution in all examined thirteen witnesses. The report of the Chemical Examiner (Ex.PQ) and that of the Serologist (Ex.PQ/1) about the blood-stained earth were also tendered in evidence.
4. Dr. Muhammad Mushtaq Ahmad (P.W.1), who had performed the autopsy on the dead body of Mst. Amiran Khatun, noted following injury on her body:- "An entrance wound of fire-arm 11 c.m. x 1(1/2) c.m. On the left side of root of nose. No burning or blackening was present around the wound. Its exit wound measuring 12 c.m.x. 5 c.m. Was situated on the back of left side of head. The brain matter was protruding out of the exit wound."
' Frontal and periatal bones of skull were found fractured on both sides. So also the nasal, temporal and occipital bones were found fractured on the left side.
' According to his opinion, the only injury was sufficient to cause the death in the ordinary course of nature.
' During cross-examination, the doctor expressed the opinion that the track of the bullet was from a lower to a higher level slightly.
5. The ocular account was deposed to by Kilasa Khan (P.W.7), Khan Zaman (P.W.8) and Fateh Khan (P.W.11)..
' Fateh Khan repeated fhe facts given by him in the F.I.R. With slight variations. P.Ws.7 and 8 corroborated his statement to the extent of accused having come to the house of the complainant, having fired at them and of fatal shot having been fired by Amir, hitting Mst. Amiran Khatun.
However, the statement made by Fateh Khan that they were sitting inside the house was not corroborated by Dilasa Khan P.W., who instead stated that they "were sitting in front of the door of the house of Fateh Khan 4/5 karams away towards south outside."
'Khan Zaman while giving the names of the accused had not named Alam Khan and in this regard cross-examination done by the A.D.A. With the permission of the trial Court did not bear any fruit.
' Fateh Khan (P.W.11) during cross-examination admitted some previous incidents that had taken place between them and the accused-party. In that. Regard he mentioned the fact of Muhammad Amir having set at fire his tubewell and of his (Fateh Khan) having got a case registered against him, a month prior to this occurrence, While answering to another question, he stated that, "the F.I.R.
Was not recorded at 2 a.m. In the night but the complaint was drafted at the place of occurrence at 6 a.m., the next dajr when the police arrived at the place of occurrence." Fateh Khan as well as the other two eye-witnesses, who appeared at the trial, admitted their inter se relationships. He also admitted that the other eyewitnesses named in 'the F.I.R. But were given up were also related to him.
' Ata Muhammad, F.C. Who had been entrusted the service of summons on the absconding accused appeared as P.W.10 and deposed about his having made attempts for serving the accused and of his failure in that regard.
' Evidence of recovery of guns from Alam Khan and Ratas Khan at the time of their arrest was also led, at the trial.
6. Ratas Khan and Alam Khan during their statements under section 342, Cr.P.C. Denied the prosecution case and while pleading innocence set up plea of false implication on account of their enmity with the complainant and other P.Ws. Alam Khan denied that he had absconded.
7. The learned Additional Sessions Judge, Mianwali held Ratas Khan and Alam Khan guilty under sections 148/149,307/149 and 302/149 P.P.C., convicted them accordingly and awarded sentences as follows:- ' Under section 148/ Two years R.I. Plus a fine of Rs,2,000 each, in 149, P.P.C:- default whereof to suffer further R.I. For six months.
' Under section 307/ Ten years R.I., plus a fine of Rs,5,000 each, in 149, P.P.C. Default whereof to suffer further R.I. For one year. Under section 302 ' Death, plus a fine of Rs,5,000 each, in default 149, P.P.C. Whereof to undergo R.I. For one year each.
' Half of the amount of fine, on recovery, has been directed to be paid as compensation to the heirs of the deceased.
8. The convicts have filed appeal. The learned trial Judge has made reference for confirmation of death sentences. Both the matters are being disposed of by one judgment.
9. Learned counse' appearing for the appellants at the very outset made a statement at the Bar that Amir Khan absconding co-accused of the appellants, who, according to the prosecution, had initiated the occurrence, by raising Lalkara and had fired the only shot suffered by Mst. Amiran, which proved fatal, had died during police encounter, five/six months ago.
10. The contention of the learned counsel for the appellants that the P.Ws. In this case are related and inimical to the accused, of course, is borne out from the record. None of the eyewitnesses, who appeared at the trial, had denied their relationship inter se. Rather all of them have accepted this fact.
' Fateh Khan admitted that Amir Khan, co-accused of the appellants had burnt his tubewell, a month before the present occurrence. Said Amir Khan was real maternal uncle of Ratas Khan and real brother of Alam Khan appellants. The enmity between the parties thus. Is also admitted in a way.
' Although guns were stated to have been recovered from both the appellants at the time of their arrest, but since no crime empty of .12 bore gun was found at the spot at the time of spot inspection by the Investigating Officer, there is no report of the guns wedding' with any of the crime empties recovered from the spot. As such, the corroborative value of the recoveries of the guns is also almost nil.
11. This being the position, the statements of the eye-witnesses, who are related and inimical also shall have to be examined with more care and caution.
' The statements of the witnesses that five persons had been firing at them when they were sitting together in front of the house in the open, but none of them had suffered any injury, seems to be doubtful. Had five persons been firing on four persons sitting together on two charpoys in the open, someone of them must have suffered some injury. It is not their case that they had taken shelter before firing started. If a lady could have received a shot while standing inside the doors of the Kotha, how could these witnesses, who were sitting towards the side of the accused in the open, have escaped? The narration of the occurrence by the eye-witnesses, therefore, does not inspire confidence.
' P.Ws.8 and 11 are at variance about the place where they were sitting at the time of occurrence.
Portions of their statements in this regard have been noted in the earlier part of this judgment.
' Yet the other important aspect of the case, which has attracted our attention is that complainant Fateh Khan has himself admitted during cross-examination that F.I.R. Was not recorded at the police station at 2 a.m., as is the prosecution case. Rather the complaint was drafted at his instance at the spot at 6 a.m. When the police arrived in the village. This admission supports the contention of the learned counsel for the appellants that the occurrence was reported after consultations and deliberations and the complainant had involved all those persons, with whom he was either unhappy or had enmity.
' Even if the evidence of absconsion of Alam Khan is given any weight, that would not improve the case of the prosecution, in view of the doubtful nature of the testimonies of the eye-witnesses.
12. After careful consideration of the prosecution case and the evidence on record, we have come to the conclusion that the prosecution has not been able to prove its case beyond reasonable shadow of doubts. This appeal is, therefore, accepted and the appellants are acquitted by way of grant of benefit of doubt.
' Death sentence is not confirmed.