' ALI HUSSAIN QAZILBASH, J.--This appeal (No,49 of 1988) arises from the judgment of the Peshawar High Court (Circuit Bench Abbottabad), whereby a learned Division Bench of that Court, vide judgment, dated 29-2-1988, allowed the State appeals bearing Nos. 11 of 1979 and 191 of 1980 and convicted the appellants, aamely, Farid alias Kala son of Musa, Sabir son of Jumma and Mashal son of Abdur Rehman, under section 302/307/34, P.P.C. And sentenced each of them to imprisonment for life and a fine of Rs,5,000 on two counts and in default of payment of fine to two years' further R.I. Under section 302/34, P.P.C. And to seven years' R.I. And a fine of Rs, 2,000. Or in default to one year's further R.I. Under section 307/34, P.P.C. They were also directed to pay a sum of Rs,10,000 each as compensation to the heirs of the two deceased and also to pay a sum of Rs,5,000 each as compensation to Mst. Parveen injured P.W. In default of payment of compensation, the appellants were ordered to undergo S.I. For six months, each. The appellants were also allowed the benefit of section 382-B, Cr.P.C.
2. In this case the prosecuting agency was set in motion when on 7-6-1975 at 8-30 in the morning Karim Dad son of Mira, resident of Akhun Bandi, made a report as per F.I.R. Exh. PA. Alleging therein that on the day of occurrence, i.e,, 7-6-1975, at 5 a.m. He alongwith Muhammad Zaman was washing their hands and faces in front of the bath rooms of the village mosque when in the meantime Mashal, Farid, Sabir his co-villagers, and Khoidad (absconder) resident of Kala Mira, entered the mosque duly armed with rifles. The first shot was fired by Mashal from his rifle effectively at Kala (deceased), his first cousin, who was busy in reciting Quran in the mosque. Kala was hit with another shot fired by Khoidad from his rifle. Ayub (deceased), uncle of the complainant, was also present in the mosque who was fired at by Farid and Sabir by a number of shots with their Kartusi rifles. Similarly Mashal and Khoidad also fired a number of shots at random with their rifles. Kala and Ayub died as a result of fire shots at the spot and the assailants mentioned above made good their escape. The occurrence was seen by the complainant and Muhammad Zaman from the places where ablution is made. Abdul Jabbar son of Salli, cousin of the complainant, was present outside the mosque who had also seen the occurrence. At the time of the occurrence, nobody else was present in the mosque. The motive given in the F.I.R. Is that eight months earlier, Safdar, a co-villager of the complainant, who was related to the accused was killed and though the complainant's side was not charged with that murder but the accused suspected the complainant's side to have committed the said murder. When the S.H.O. Completed the recording of the above report at the instance of Karim Dad, Mashal accused was also brought to the police station in injured condition on a charpoy, whose report was recorded separately. On the basis of the said report, eight persons were charged under sections 307/149 and 148, P.P.C.
3. After the occurrence, Farid and Sabir appellants and their third companion Khoidad absconded while Mashal appellant was arrested. After the registration of the case, Akhtar Ali Khan, S.H.O. (PW 12) proceeded to the spot. He found the two dead bodies lying in the mosque where their injury sheets and inquest reports were prepared and the dead bodies were sent to the mortuary for autopsy. During the investigation he took into possession some blood from the places of the dead bodies with the help of cotton wool from inside the mosque and made recoveries of seven empties of 7 mm, ten empties of .12 bore, all freshly discharged, seven card boards, eighteen pellets and two pieces of bullets from the spot at different places. He prepared the site plan at teh instance of eyewitnesses and indicated therein the presence of the assilants, the two deceased, the witnesses, the injured P.Ws., etc. He had also taken into possession the bloodstained clothes of the deceased alongwith phials containing pellets extracted from the dead bodies. He also took into possession the clothes of the injured P.Ws.
4. After the completion of the investigation, Sessions Case No,85/8 of 1976 `State v. Mashal' and Sessions Case No,86/8 of 1976 State v. Gohar Rehman, etc., were taken together by Mr. Shamso Qamar Safi, Additional Sessions Judge, Hazara at Abbottabad. The prosecution in support of its Sessions Case No,85/8 of 1976 produced as many as twelve witnesses including Dr. Safdar Saeed, Medical Officer, Civil Hospital Haripur (P.W. 2) and Lady Dr. Mrs. Naseer Ahmad Khan, Civil Hospital Haripura (PW 3). The post-mortem examination on the dead body of Ayub was conducted by Dr. Safdar Saeed (PW 2) on 7-6-1975 at 4 p.m. He found the following injuries on his person: "(1) A large gaping firearm wound (entrance wound) on the left side of face one inch to the left of the left eye going downwards in the neck cutting the ear, 4" x 2 2/1/2".
(2) A number of pellet wounds on the left cheek at a distance of 1/4" from each other going deep (entrance wound).
(3) Two firearm entrance wounds on the left upper arm 2" below the shoulder joint in front each 1" x 1" going deep at a distance of 1/4" from each other.
(4) Large lacerated wound left thigh starting from anterior superior iliac spine going to the side and in front 7" x 6" injuring all the muscles of the thigh and fracturing the thigh bone in several places."
' On internal examination of the deceased, his walls, ribs and cartridges 2, 3, 4 left ribs were found fractured. Pleura, lungs, paricardium and blood vessels entering the heart were also found injured.
Stomach half was found full of semi-digested food. Muscles, bones, joints, bones of left side of face, left upper and lower jaws, left thigh bone, left and right ribs were found fractured. In the opinion of the doctor, injuries 1, 2 and 3 were caused by firearm and injury No,4 by blunt means. Large pellets weighing 80 grains, 75 grains and 75 grains removed from the outer portion of front of chest right side were handed over to the police. Probable time that elapsed between injuries and death was instantaneous and between death and post-m3rteth examination 11 to 12 hours.
5. Dr. Safdar Saeed (PW 2) also conducted post-mortem examination on the dead body of Kala on 7-6-1975 at 3.10 p.m. And found the following injuries: "(1) Firearm entrance wound middle of back on the vertebral column at the level of the lower end of scapula 1" x 1" going deep.
(2) Firearm entrance wound 2" to the left of wound No,1, 1/4" x 1/4".
(3) Firearm entrance wound below the left rib, 3" above the iliac crest 1-1/2" x 1-1/2" going deep, charring present.
(4) Three exit wounds 2" above the right iliac crest on the back each 1/4" x 1/4" at a distance of 1/2" from each other.
(5) Exit wound on the abdomen one inch above the umbilicus 1/4" x 1/4"
(6) Exit wound front of abdomen 1/2" below the middle of right ribs 1/4" x 1/4."
' Sixth and seventh left ribs were found fractured at the back. Left pleura and left lung were injured.
Walls, paritoneum and stomach were also injured. The stomach was empty. Small and large intestines, liver and spleen were injured. The injuries were caused by firearm. Two large pellets removed from under the skin near wound No,4, one large pellet removed deep down near wound No,2 and one large pellet recovered from the clothes of the deceased were handed over to the police.
' This P.W. Also examined Muhammad Riaz and found three firearm injuries on his right knee.
6. Lady Doctor Mrs. Naseer Ahmad Khan (PW 3) examined Mst. Nusrat, aged 12 years, on 7-6-1975 at 11.15 a.m. And found two firearm injuries on her person. She also examined Mst. Parveen, aged 22/25 years, on the same day at 2.45 p.m. And found one firearm entrance wound on upper portion of right labia 1" x 1" going deep with a corresponding cut in her shalwar.
7. The learned trial Court then recorded the statements of Mashal Khan, Sabir and Farid which were a bare denial of the prosecution case. All of them deposed that they had been charged falsely because of their enmity with the complainant side.
8. The learned trial Court simultaneously proceeded with the trial of Sessions Case No,86/8 of 1976 and after recording the statements of the prosecution witnesses and the accused vide its two separate judgments dated 10-8-1976 acquitted all the accused in both the cases. In Sessions Case No,85/8 of 1976, the State filed an appeal under section 417 Cr.P.C. Against the acquittal of the three appellants which was allowed on 23rd January 1978 and the case was remanded to the trial Court for further inquiry with regard to the injuries suffered by Mashal.
9. The trial was then taken up by Mr. Rasool Khan Khattak, Additional Sessions Judge, Haripur, as directed by the High Court. Mashal in the meantime absconded and he was ordered to be proceeded against under section 512, Cr.P.C. In this trial, he recorded the statements of some of the witnesses and that of Farid and Sabir under section 342, Cr.P.C. And vide his judgment, dated 16-7- 1978 acquitted Farid and Sabir of charges under section 302/307/34, P.P.C. Through the same judgment it was further held that the absconding accused, namely, Mashal and Khoidad, on their arrest be tried separately. It seems that Mashal subsequently surrendered himself. He was tried by Mr. Muhammad Nawaz Khan, Additional Sessions Judge, Abbottabad at Haripur, under section 302/307/34, P.P.C. And after recording the necessary evidence, acquitted of the charge by giving him the benefit of doubt vide judgment, dated 13-1-1980.
10. The State filed two criminal appeals under section 417, Cr.P.C. Bearing Nos. 11 of 1979 which was against the acquittal of Farid and Sabir and 191 of 1980 against the acquittal of Mashal. Both these appeals were taken up by the learned Division Bench of the Peshawar High Court, Abbottabad Circuit, and both were allowed as per the impugned judgment.
11. The appellants, namely, Mashal, Farid and Sabir, have filed the present appeal bearing No, 49 of 1988 against their conviction and sentence, and the complainant, Karim Dad, has also filed a petition bearing No,45-R of 1988 for enhancement of the sentence of the abovenamed appellants.
As both the matters arise out of the same judgment of the High Court, we propose to dispose them of by this judgment.
12. We have heard the learned counsel for the parties for and against the appeal and the petition and have gone through the evidence with their assistance. The learned counsel for the appellants vehemently contended that in this case the prosecution has miserably failed to establish its case against his clients inasmuch as the eye-witness account is not only contradictory and discrepant but is also in conflict with the other circumstantial evidence, i.e,, the medical evidence and the site plan. He further submitted that as per the evidence it is apparent that it was an unwitnessed crime and the motive having not been proved, the appellants, who' were on inimical terms with the complainant side, have been falsely implicated in the commission of the offence. The above submissions were, however, controverted by the learned counsel for the opposite side.
13. After considering the arguments in the light of the evidence, we think that the grievance of the learned counsel for the appellants has force.
14. It has been alleged in the F.I.R. Lodged by Karim Dad that on the fateful day at about 5 a.m.
When he and Muhammad Zaman P.W. Were busy washing their hands and faces, Mashal, Farid and Sabir appellants and Khoidad, the absconding accused, duly armed with rifles entered the mosque. Mashal was the first to fire effectively at Kala who was reciting the Quran and he was followed by Khoidad whose fire at Kala also proved effective. Farid and Sabir appellants their fired effectively at his uncle Ayub with their Kartusi rifles. Kala and Ayub died a the spot and the accused after firing with their weapons at random made good their escape. Except Abdul Jabbar, his other uncle, no one else was present in the mosque.
15. At the trial, though the role attributed by the complainant to each of the three appellants and the absconding accused in the F.I.R. Was maintained but there is a marked difference rather contradiction in the manner of describing the incident in the F.I.R. And at the trial. For instance, the allegations made by the complainant in the F.I.R. And the deposition made by him and Muhammad Zaman (PW 10) at the trial that Kala deceased was reciting Quran in the mosque has not at all been established in that the investigating officer did neither find nor recovered any copy of the Quran or the rehl. The place where Kala deceased was allegedly reciting the Quran too has not been indicated by the eye-witnesses to the investigating officer and thus the said spot has not been shown in the site plan. At the trial, Karim Dad (P.W.9) and Muhammad Zaman (PW 10) have deposed that Mashal appellant went near the window intervening between the inner Veranda of the Mosque and the outer Veranda of the Musafirkhana of the mosque and fired a shot with rifle at Kala and that Kala ran from there to the courtyard of the mosque and was fired at by Khoidad (absconding accused) with rifle effectively. This has neither been described so in the F.I.R. Nor h4s the firing with rifles been supported by the medical evidence in that the doctor did not find any rifle injury on the person of Kala deceased, the injuries found were those of shotgun. Further, injury No,3 on the person of Kala deceased had a charring mark. According to the prosecution at the time of first firing Kala deceased was at point 1-alif whereas his assailants were at points 3 and 4. The distance between points 3 and 4 and 1-alif is between 10 and 11 paces. Thus firing from such a distance cannot cause charring. According to the site plan the dead body of Kala was found at point No,1. No trail of blood was found between points 1-alif and 1 and there is also no evidence that any of his assailants went near Kala and then fired at him resulting in an injury having charring.
16. As for the firing at Ayub deceased by Sabir and Farid, the witnesses at the trial have admitted that at the crucial time Ayub was sitting on a platform and was performing Wazeefa; that the three appellants and the absconding accused entered the mosque from the main gate located towards the south of the mosque and it was thereafter that Sabir and Farid fired effectively at Ayub from the courtyard of the mosque. According to the site plan, the main gate of the mosque is at point 14 wherefrom the accused were alleged to have entered the mosque. Point 2-alif where Ayub deceased was alleged to be present at the time lay ahead towards the north of point 14 at a certain distance. Points 5 and 6 which indicate the presence of Sabir and Farid, respectively, are further ahead towards the north of point 2-alif. Now it is not understood why should Sabir and Farid pass nearby Ayub deceased, go ahead of him for some distance and then fire at him at the risk )f disclosing their identity when they could have easily fired at him from point 14 of when they were passing nearby the deceased. Furthermore, there is a very big acerated injury on the left thigh of Ayub deceased which according to the postmortem report was caused by a blunt weapon. None of the witnesses has said any as to how this injury was caused and at whose hands. Mst. Parveen (P.W.11) who also claims to be an eye-witness has hardly supported the other two eyewitnesses.
Strangely enough no empty of any weapon has been recovered from points 3 and 4, and 5 and 6, where the alleged assailants were present and fired at the two deceased and so there is no evidence that any of the assailants firing at the two deceased from the points indicated above.
17. According to site plan prepared at the instance of the eye-witnesses, five empties of 7 mm and three empties of .12 bore freshly discharged were recovered from point 7, seven empties of .12 bore and one empty of 7 mm were recovered from point 8. Point No,7 is just below point No,2-alif where Ayub deceased was fired at whereas point No,8 is in the Musafirkhana of the mosque. It is nobody's case that either of the parties had fired from point No,8, but since a large number of empties were found from point No,7 which is adjacent to point No,2, it can be safely said that it was none else but Ayub who fired at his assailants from point No,2 when he was alive. Some pellets and cardboards were found from points Nos.9 to 24. This clearly indicates that there was a cross firing between the two deceased and their assailants, as a result of which the two lost their lives. The fact that there was cross firing between the parties has been fully established by the injuries sustained by Mashal appellant who had received a firearm injury on his left groin in the middle 3" x 2" going deep, another small entrance wound 1/2" below injury No,1, 1/2" x 1/2". There were also six exit wounds on his outer and upper portion of the left thigh at a distance of 1/2" from each other, each 1/2" x 1/2".
Two cardboard pieces weighing 30 grains were removed from the clothes of Mashal and one large pellet weighing 50 grains removed from his skin on outer and upper portion of his left thigh. Besides Mashal, three other persons, namely, Mst. Nusrat, Muhammad Riaz and Mst. Parveen, have also stamp of firearm injuries on their persons. The injuries on the person of Mashal have been conveniently suppressed by the eye-witnesses and also the injuries to Mst. Nusrat and Muhammad Riaz.
18. The re-appraisal of the entire evidence made by us has led us to the conclusion that the case against the three appellants as to the charge of the murders of Kala and Ayub is not free from doubt. The ocular evidence having come from interested witnesses is not only discrepant but is belied by the medical evidence. The motive too has not been established.
19. In view of the above the conviction of the three appellants, namely, Mashal, Farid and Sabir, under section 302/34, P.P.C. Cannot be sustained. Their appeal is accepted, the order of the High Court is set aside and they are acquitted of the charge of murders.
20. So far as the conviction of the three appellants under section 307/34, P.P.C. For causing injuries to Mst. Parveen is concerned, Mashal appellant cannot be accused of causing injuries to her because the injury suffered by her was a pellet injury whereas Mashal was alleged to be armed with a rifle. He is thus acquitted of the charge under section 307, P.P.C. Also. Of course, Sabir and Farid cannot escape this conviction. Mst. Parveen received a pellet injury on her person at their hand. The conviction and sentence of Sabir and Farid under section 307/34, P.P.C. Awarded to them by the High Court is justified and accordingly maintained.
20. The appeal is thus allowed with the above modification.
21. The petition filed by Karim Dad for enhancement of the sentence of the three appellants automatically fails and is hereby dismissed.