' WALI MUHAMMAD KHAN, J.-- Abdul Karim (55/56) son of Asad Khan, convict-appellant, has challenged the order, dated 17-1-1988, passed by the learned Additional Sessions Judge, Bannu at Lakki, whereby he was convicted and sentenced, under section 302/34, P.P.C., to rigorous life imprisonment and a fine of Rs,5,000 payable, on recovery, to the legal heirs of the deceased, or in default whereof to undergo six months further rigorous imprisonment, for causing the murder of Ali Beg son of Payo Gul of village Abbasa by firing at him effectively, along with his co-accused Abdul Hameed (now absconder), Abdul Qayum and Abdul Manan, (since acquitted), and also for ineffective firing at Sirbiland (complainant) and Muhammad Akram (P.W.) in furtherance of their common intention on 14-6-1979 at `Khuftanwela' in the limits of fields belonging to Mirabat Khan, resident of village Abbasa of Police Station Dadiwala, Tehsil Lakki, District Bannu. Sirbiland Khan complainant also feeling aggrieved by the said judgment and order of the learned Additional Sessions Judge, Bannu at Lakki, has filed criminal revision petition for enhancement of the sentences awarded to the convict-appellant. Since both these matters are the outcome of one and the same judgment, therefore, we propose to dispose both of them through this single judgment.
2. Facts of the prosecution case, in brief, are that on 14-6-1979 at `Khuftanwela', the complainant Sirbiland (P.W.8) alongwith his cousin Muhammad Akram (P.W.9) were proceeding from their village to Lakki in a bus when on the way near the path known as `Dara Tang', his brother, Ali Beg, a Constable in Levi Police, also got into the said bus and all the three alighted from the bus near the Adda called as `Mushtri Chak Abbasa' and went to the house of Abu Khan (P.W.11) who entertained them with a meal, whereafter they started towards their village. Ali Beg (deceased) was going ahead of them while the complainant Sirbiland and P.W. Muhammad Akram Khan were going behind him respectively. When they reached near the field of Mirabat Khan, they found all the four accused armed with topaks sitting behind the `Kana Bushes' and on reaching near them, Abdul Hamid (absconding accused) shouted at them that they could not escape and simultaneously he fired at the deceased hitting him on his abdomen. Abdul Karim, accused-appellant, repeating the same words, got up from the said `Kana bushes' and fired at the deceased with which he was injured on the left side and fell down on the ground. The other accused, namely, Abdul Qayum and Abdul Manan who were also waiting behind similar `Kana bushes' at Some distance shouted at them in the same manner and, thereafter, fired ineffectively at the complainant party and, thereafter, all the accused made good their escape towards the village. Abu Khan (P.W.10) and Mir Abbas Khan were attracted to the spot on hearing the report of fire shots and after placing the deceased on a cot, helped the complainant party in taking the dead body to the Police Post Abbasa where Sirbiland complainant (P.W.8) made the report, Exh.P.A./1, which was recorded by Ohda Mir A.S.I. (P.W.11) and the same was later on incorporated in F.I.R., Exh.P.A., by Khuda Bakhsh Khan Sub-Inspector (P.W.4). After recording the report, Exh.PA./1, the A.S.I. (P.W.11) prepared the injury sheet (Exh.P.M./1) and inquest report (Exh.P.M./2) of the deceased and sent the dead body to the mortuary for post-mortem examination under the escort of Begu Khan Constable (P.W.3).
3. Motive for the offence is that about 5/6 months prior to the instant tragedy, Abdul Hamid (absconding accused) had charged Sirbiland complainant (P.W.8) and his brother Gul Tiaz Khan for firing at him effectively. Muhammad Akram (P.W.9) and Abu Khan (P.W.10) admitted in their deposition in Court that they are also co-accused in the said case alongwith Sirbiland (P.W.8).
4. Ohda Mir (P.W.11) proceeded to the spot and made the cursory inspection thereof. He recovered blood-stained earth and 4 empties of .12 bore from the spot and took the same into possession, vide memo. Exh.P.C. And Exh.P.D. Respectively. The following morning, on the thorough examination of the spot, he recovered 13 card board discs and 2 wads Exh.P.E./1 and Exh.P.E/2 respectively and took them into possession vide memo. Exh.P.E. All these recoveries were affected in presence of Gul Wali Khan (P.W.12). The doctor, after post-mortem examination of the deceased, handed over one shirt bloodstained Exh.P.F./1 and one Baniyan Exh.P.F./2 to Begu Khan Constable (P.W.3) and he produced the same before the Investigating Officer who took them into possession vide memo.
Exh.P.F. In the meantime, Haqnawaz Khan S.H.O. (P.W.4) arrived at the scene and took over investigation from the Investigating Officer. The appellant and his co-accused were not available in the village and, therefore, warrants of arrest under section 204, Cr.P.C. (Exh.P.W.2/1 to Exh.P.W.2/4) were obtained from the Court of Illaqa Magistrate and were entrusted to Appeal Khan (P.W.2) for execution. The witness made a search of them in the village and the surrounding areas but could not apprehend them. Consequently, proclamation under section 87, Cr.P.C. (Exh.P.W.2/5 to Exh.P.2/8) were secured against them and entrusted to the said Constable for execution, but the accused including the appellant did not surrender and in consequence complete challan for proceedings under section 512, Cr.P.C. Was put in Court against them by Haqnawaz Khan S.H.O.
(P.W.4). All the accused including the appellant were arrested on 10-10-1979 and supplementary challan against them was put in Court, after observing the necessary legal formalities, by Sher Zaman Khan, Sub-Inspector, (P.W.5) before the Illaqa Magistrate who sent up the accused for trial in the Court of Additional Sessions Judge, Bannu at Lakki. Necessary charge-sheet was framed against all of them to which they pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution produced as many as 12 prosecution witnesses out of whom P.W.8 and P.W.9 have given ocular testimony of the occurrence while the rest are formal in nature and their depositions have been referred to in the earlier part of this judgment and need not be reiterated.
6. Sirbiland complainant (P.W.8) and Muhammad Akram (P.W.9) in their deposition in Court clearly re-narrated the prosecution version as incorporated in the F.I.R. Exh.P.A. And charged Abdul Karim appellant and Abdul Hamid (absconding accused) for causing the death of Ali Beg deceased by firing at him effectively with shotgun and charged the other accused namely, Abdul Qayum and Abdul Manan (since acquitted) for ineffectively firing at them. Abdu Khan (P.W.10) who is cousin of the deceased stated that the complainant party after taking their evening meal with him in his house started for their village and after a while he heard the report of fire shots upon which he rushed to the place of occurrence and found the deceased having been fired at and murdered. He brought a cot from his house and placing the dead body thereon, took it to the Police Post Abbasa with the help of other prosecution witnesses. Sirbiland complainant (P.W.8) lodged the report. All the accused, were examined under section 342, Cr.P.C. As also on oath but they denied their implication in the occurrence and claimed to be innocent.
7. After perusal of the evidence so produced by the prosecution coupled with the abscondence of the appellant, the learned trial Judge found Abdul Karim, convict-appellant and his co-accused Abdul Hamid (absconder) guilty for the murder of the deceased Ali Beg by firing at him and consequently convicted Abdul Karim appellant under section 302/34, P.P.C. And sentenced him as stated earlier. However, since Abdul Hamid (absconding accused) had participated in the trial all along but absconded at the tail end from the trial, therefore, it was ordered that perpetual non- bailable warrant of arrest by issued against him. The participation of the other accused, namely Abdul Qayum and Abdul Manan in the commission of the offence was not accepted by the learned trial Judge and they, were, therefore, acquitted of the charges levelled against them. Hence the instant appeal.
8. Learned counsel for the appellant emphasised that the occurrence took place at a time when it was sufficiently dark and identification of the assailants was not possible; that the introduction of shouting by the accused before the actual firing was deliberately introduced as the prosecution witnesses apprehended that without it their version of identifying the assailants would not be acceptable to the Court; that the medical evidence, runs contrary to the prosecution version, inasmuch as according to them they took the meal with Abu Khan just before the occurrence but the Doctor found digested food in the stomach of the deceased; that the injuries on the person of the deceased also are not in accordance with the shots attributed to the accused and, finally, that there is no independent evidence produced in support of the charge and the witnesses tendered in evidence were not only closely related to the deceased but their animosity with the accused was also an admitted fact.
9. The learned State counsel, on the other hand, controverted these submissions of the appellant's counsel and maintained that though the evidence was interested, but in view of the corroboration in the form of medical evidence, recoveries of empties, cardboard discs and wads from the spot supported by the abscondence of the accused for sufficiently long time, the learned trial Judge has rightly placed reliance on them and passed the order of conviction against the appellant, impugned herein.
10. We have anxiously considered the learned submissions of either side. It is an established proposition of criminal law and practice that the prosecution is duty bound to establish the charge against the accused beyond any shadow of doubt; that the evidence produced in support of the charge must come from independent quarter and in case the same is proved to be interested, then it must get corroboration from independent circumstances; that the identification of the assailants, in view of the time and place of occurrence, should be free from doubt; that there should not be any inconsistency between the direct and circumstantial evidence of the case and that the prosecution reversion should not admit of any other hypothesis favourable to the accused.
Keeping the same yard-stick in view, we have to analyse the evidence produced in the case in order to determine the guilt or innocence of the accused-appellant.
11. According to the initial report, copy Exh.P.A./1, recorded by Ohda Mir (P.W.11) at Police Post Abbasa, the occurrence took place at Khuftanwela'. The report was lodged at 2100 hours and according to this very prosecution witness the spot is at about 300 paces from the scene of occurrence. It is also admitted by him under his cross-examination that while proceeding to the spot he took a torch with him which goes to prove that there was darkness at the time of occurrence. It is admitted by Gul Wali Khan (P.W.12) in his cross-examination that distance between the Police Post Abbasa and the spot is 200 yards and that they had heard the fire-shots on the night of occurrence and that he accompanied the A.S.I. To the spot. It is also the case of the prosecution that they reached the police post without loss of much time and in the circumstances the occurrence took place at Khuftanwela. The prosecution made a vain attempt to take the occurrence from dark to dusk through the mouth of some of the witnesses but in that they could not succeed in view of the aforementioned admitted position. In consequence, identification of the assailants was not possible.
12. It is the case of the prosecution from the very outset that the accused had concealed themselves behind the bushes known as Kana' normally used for preparing fences and that on the arrival of the deceased and the complainant they got up and challenged them that they would not escape and thereafter fired at them. It is obvious that the assailants had made all precautions to conceal their identity and it is not understandable as to why they disclosed themselves to the witnesses whosoever admittedly their enemies and the possibility of their being armed could not be excluded from consideration. Furthermore, the appellant and his co-accused Abdul Hamid had taken their positions in a ditch which was of about 4-1/2 feet depth and they could safely achieve their object by firing at the deceased without running the risk of being identified by the complainant party and it does not stand to reason that they would come out of their place of hiding. The injuries on the person of the deceased, according to the opinion of the Doctor Chiragh Hussain Shah (P.W.1) were from below upward which could only be caused if the assailant was on a lower level than that of the target. We are, therefore, convinced that the prosecution witnesses, even if they are presumed to be present at the time of occurrence, could not have a chance to see the assailants at the time of firing.
13. Admittedly the prosecution witnesses, namely, Sirbiland, Muhammad Akram and Abu Khan are not only closely related to the deceased but inimical towards the accused as well, inasmuch as all of them were charged for effectively firing at Abdul Hameed (absconding accused) resulting in the registration of a case under section 307/34, P.P.C. Against them which was pending trial in a competent Court of law at the time of occurrence. They, therefore, fall within the category of interested witnesses and their statements could not be made the basis for conviction of the appellant unless they received strong and independent corroboration. In the case in hand what to speak of corroboration, they are directly rebutted by the circumstantial evidence in the case.
According to their version in the F.I.R. As well as in their statements in Court, they and the deceased took their evening meal just before the occurrence in the house of Abu Khan but the Doctor, on post-mortem examination, found digested food in the stomach of the deceased which could only be if the last meal had been taken by the deceased at least three hours prior to his death. There are .4 inlet wounds and 4 exit wounds on the person of the deceased and out of the inlet wounds 3 wounds are 1/8" x 1/8" which the 4th one is 1/4" x 1/4". The pictorial prepared by the Doctor which is part of the post-mortem report Exh.P.1/1, clearly suggests that they are in one line and appear to be the result of one fire-shot fired from a shotgun. The direction of the injuries is also from right to left which is confirmed by the Doctor in his statement in Court wherein he positively stated that the direction of the wounds is from below upwards and from right to left. This position is in contrast with the site plan wherein point No,1 is shown as the place where the deceased was fired at and hit, by the fire shots of Abdul Hamid (absconder) and Abdul Karim appellant shown at point No,2 and point No,3 respectively in the site plan Exh.P.B. Point No,1 is shown towards the south of points Nos. 2 and 3 and if the deceased was coming from the hamlet where Abu Khan (P.W.10) is residing, and shown towards the further south of point No,1 and was proceeding in the direction of point B shown in the site plan where blood was recovered, then any person firing at him from points 2 and 3 could cause him injuries on the left side of chest and not on the right side. The house of the accused and the police post is shown towards the north of the spot which are connected through a path (Pakdandi) with hamlet of Abu Khan (P.W.10). No sufficient explanation is available in the evidence to show as to why the deceased and the complainant party abandoned the path and went through the fields of one Mirabat Khan. The injuries on the person of the deceased, clearly suggest that the deceased was fired at while he was proceeding towards his village on the path from south to north, or the witnesses being not present on the spot at the time of occurrence, could not point out the correct place to the Investigating Officer at the time of spot inspection. Furthermore, the footnotes appended with the site plan (Exh.P.B.) prepared at the instance of P.W.4 show that the deceased was hit at point No,1 and after crawling for 10 paces fell at point B wherefrom the blood was taken into possession by the Investigating Officer. According to the opinion of the Doctor, death of the deceased was instantaneous because, besides the injuries to the other vital part of the deceased, his heart was also injured and as such the theory of crawling from point No,1 to point B is belied by the medical evidence. In presence of these material inconsistencies in the ocular testimony and the circumstantial evidence available on the record, it was not safe to base conviction on the interested testimony of the prosecution witnesses.
14. The recovery of blood-stained earth, vide memo. Exh.P.C. 4 empties, vide memo. Exh.P.D. From the spot on the night of occurrence and the recovery of 13 cardboard discs and 2 wads of .12 bore, Exh.P.E. On the following morning is not free from doubt inasmuch as the former two memos. Are witnessed by police officials while the latter one was signed by Mohabat Khan but he was not produced in evidence and the prosecution rest contended only with the statement of Gul Wali Khan I.H.C. (P.W.12) in support of the said recoveries. He has been cross-examined but his answers to the questions are not satisfactory. He showed ignorance whether any private person was present at that time at the spot or not. He also could not explain that on which side of the blood the empties and cardboard discs and wads were lying, nor he could give the distance between the spot wherefrom the blood was picked up and those, wherefrom the aforemenOoned articles were recovered. The recoveries, therefore, do not advance the prosecution's case any further.
15. There is yet another material aspect of the case favouring the appellant herein. Both the eye- witnesses implicated Abdul Qayum and Abdul Manan (acquitted accused) in the instant tragedy attributing them the role of waylaying the complainant's party, alongwith their co-accused Abdul Karim appellant and Abdul Hamid (absconder) and have given them the role of ineffective firing at them. The recovery of 2 empties from point D presumably was shown to be result of fire shots attributed to the said acquitted accused, because Abdul Karim appellant and Abdul Hamid were attributed only one shot each. The learned trial Judge has totally disbelieved the witnesses so far as implication of Abdul Manan and Abdul Qayum was concerned. In the peculiar circumstances of the case in hand, sifting of grain from the chaff was not possible and the learned trial Judge was required to believe the evidence in toto, or to disbelieve the same in its entirety. In this view of the matter too, the learned trial Judge has erred in placing reliance on the testimony of prosecution witnesses against the appellant.
16. The appellant and his co-accused did abscond after the occurrence and surrendered after about four months which appears to have influenced the trial Judge in convicting the appellant.
Needless to mention here that there is abundant case-law on the point that mere abscondence of an accused cannot be considered sufficient for his conviction and the same can only be taken as a corroborative piece of evidence, if otherwise, there is substantial and ocular evidence of unimpeachable character coupled with circumstantial evidence to connect the accused with the crime charged with. It is, by now, universally recognised that in this part of the country people charged with offences punishable with capital sentence generally abscond not because they are really guilty but also because that they want to avoid the torture of the investigation and also on account of immediate danger to their lives due to the vengeance of the G opposite party.
Abscondence per se is no ground for recording conviction if, otherwise, the person charged with for serious offences is found to be innocent, as generally people do abscond whether charged rightly or wrongly. Reference, in this connection, can conveniently he made to Ashiq Mir and 4 others v.
The State 1987 P Cr. L J 2101, Sher Zaman and 2 others v. The State 1988 P Cr. L J 440, Taj Muhammad v. Pasham Khan and others 1986 SCMR 823 and Zaab Din and another v. The State PLD 1986 Pesh.
188.
17. The upshot of the above discussion is that the prosecution has miserably failed to bring home charge against the convict-appellant beyond any shadow of H doubt and while extending him the said benefit, we acquit him of the charges levelled against him. His appeal is allowed and he is directed to be set free if not required in any other case. Resultantly, the criminal revision filed by the complainant for enhancement of the sentences awarded to the accused-appellant stands dismissed. We may, however, mention that the case against the absconding accused shall be decided on its own merits uninfluenced by our observations made in this judgment.