ASLAM RIAZ HUSSAIN, J.-Sher Dil, aged 19/20 years (who was about 16 years and 8 months old on the day of occurrence) and Fateh Khan aged 60 years were tried along with Gola Khan and Samand Khan (acquitted accused), for an offence under section 302/34, P. P. C., by Mr. Muhammad Khurshid Khan. Sessions Judge, Mianwali. The learned trial Judge vide his judgment dated 25-2- 1970 acquitted Gola Khan and Samand Khan but convicted Sher Dil and hatch Khan of the above- noted charge, and sentenced Sher Dil to death and Fateh Khan to transportation for life. They have filed an appeal against their conviction and sentences. The matter is also before us under section 374, Cr. P. C. For confirmation of the death sentence awarded to Sher Dil appellant. We propose to dispose of the appeal and the reference by a single judgment.
The occurrence took place in village Sawans, District Mianwali at about dopeharwela on 4-1-1969.
The F. I. R Exh. Abbas Khan P. W. 9 at 4-30 p. m. On the same day at Police Station Mochh lodged P.
A.
The motive for the offence is stated to be that Samand Khan (acquitted accused) wanted the hand of Mst. Fatima, the daughter of Alam Khan deceased but the latter declined his request and, 5/6 days prior to the occurrence, married her to Fateh Khan P. W.
7. A day prior to the marriage Samand Khan sent a word to the deceased that if he married his daughter to any one else, it would not be good for him. The deceased, however, married his daughter to Fateh Khan P. W. 7: The four accused persons including the appellants resented this and murdered hire.
3. The facts of the prosecution case as stated in the F. I. R. Are briefly that at dopeharwela, on 4-1- 1969 Abbas Khan P. W. 9 was going along with his father Alam Khan deceased to the house of Fateh Khan P. W. 7 to whom his sister Fatimah had been married. When they reached near the house of Bahadur Khan Pathan, the four accused suddenly turned up from the southern street. All of them were armed with guns. Fateh Khan appellant raised a lalkara telling his companions to fire and kill Alam Khan, upon which Sher Dil appellant fired at Alam Khan hitting him on the fore-head, just when he was trying to enter into the haveli of Bahadur Khan Pathan. Alam Khan fell down at the spot. The accused went away with their weapons. Apart from the first informant, Faizullah Khan D.
W. 11, Badar Khan P. W. 12 and Madad Khan P. W. 13 also saw the occurrence. Some other persons also reached shortly afterwards. Alam Khan, who was in an unconscious condition, was placed on a cot and carried towards the police station but died in the way, after 15/20 minutes. Abbas Khan P.
W. 9 and others, however, took the body to Police Station Mochh where Ch. Sikandar Khan, S. H. O.
Recorded the F. I. R. Exh. P. A. At 4-30 p.m. At the dictation of the former. Thereafter he prepared the inquest report, the injury statement relating to the dead body and sent it to the mortuary for post- mortem examina--tion. He then went to Civil Dispensary, Mochh as he had come to know that Fateh Khan appellant had gone there for medical examination in respect with an injury said to have been received during the same incident. He obtained the medico-legal report regarding the injury of Fateh Khan appellant from the doctor and also recorded a report under section 307, P. P. C.
At his dictation in which hatch Khan (appellant), named Alam Khan deceased, his son Abbas Khan, Muhammad Khan, Allah Yar, Mehar Khan and Fateh Khan son of Mehar Khan as accused persons.
Thereafter the S H. O. Proceeded to the spot, reaching there at 10 p.m. He recorded the statements of Faizullah Khan, Badar Khan and Madad Khan P. Ws. On the same night. On the next morning (Le.
5-1-1969) he collected some blood-stained earth from the spot vide memo. Exh. P. E. He searched for the accused but none of them was available. Even Fateh Khan appellant could not be arrested as he had left the dispensary by then. However, he arrested Gola Khan and Samand Khan (co- accused) on 17-1-1969. Sher Dil appellant was arrested by Allah Bakhsh H. C. On 22-1-1969. At the time of his arrest he is said to have been carrying a .303 rifle (P. 4) along with canvas bag (P. 6), containing six cartridges (P. 5)/1-6. All these articles were taken into possession by the Head Constable vide memo. Exh. P.G. Besides the H. C., Muzaffar Khan P. W.6 and Afzal Khan (not produced also attested the memo. Of the recovery.
4. Dr. Nazir Ahmad, Medical Officer, Civil Hospital, Mianwali, who performed the post-mortem examination on the dead body of Alam Khan deceased, found the following injury on it :--
(1) A firearm wound of entry 3/4' x l" on the left upper corner of fore-head.
During the post-mortem examination, aye took out a bullet P. 8, which was lodged in the skull of the deceased and handed it over to the police. It was taken into possession by Ch. Sikandar Khan S. H.
O., P. W. 10 vide memo. Exh. P. B. The stomach was found healthy and empty. The small intestines were healthy and empty while the large intestines were healthy and half full of faeces.
5. Dr. Muhammad Sharif (C. W. 1) Medical Officer Incharge, Civil Hospital Mochh, examined Fatah Khan appellant and found the following injuries on his person
(i) A fire-arm wound of entry x 1/8" and communicating with wound of exit on the outer side of left shank, five inches below the knee-joint.
(2) A fire-arm wound of exit --" x --" and communicating with wound of entry on the back of left shank, 7" below the knee---joint.
It may be mentioned here that the case under section 307, P. P. C. Registered against the deceased and Abbas Khan P. W. 9 at the instance of Fateh Khan, appellant was cancelled after the investigation. Alam Khan son of Zafar, who was mentioned in the F. I. R. As having planned the incident was also included as an accused during the investigation but was not challaned. The two appellants and their companions, namely, Gola Khan and Samand Khan (the acquitted accused) were, however, challaned and were ultimately committed to stand their trial before the Court of Session, the result thereof has already been mentioned above.
6. The prosecution produced 13 witnesses in support of its case and relied on the evidence of motive, the evidence of the eye-witnesses, the evidence of recoveries and the medical evidence.
7. The accused when examined denied their guilt. Sher Dil, Gola Khan and Samand Khan pleaded innocence and stated that they had been falsely involved due to enmity. Fatah Khan appellant, however, gave the following explanation:-- "On the day of occurrence at about 9 a.m. I was going to the house of Ahmad Blacksmith when Alam Khan deceased and Muhammad Khan waylaid me the deceased fired at me and I was hit on my leg when I was trying to run for my life. I fired back at him in self-defence."
Two witnesses, namely, Abdur Rashid D. W. 1 and Gul Muhammad D. W. 2 were produced in defence.
D. W. 1 only proved statements Exhs, D. C. And D. D. Made by Faizullah and Madad Khan P. Ws.
Respectively before Ch. Sikandar Khan S. H. O. P. W.
10. Gul Muhammad D. W. 2 proved the original madical report (Exh. D. H.) prepared by Dr. Muhammad Sharif C. W. 1 in relation to the medical examination of Fatah Khan 'W appellant.
8. We have heard the learned counsel for the appellants as well as the learned State counsel and have also gone through the entire record with their help.
Before proceeding; to evaluate the evidence on tire record it may be useful to mention that the recovery of rifle P. 4 or bullet P. 8 in this case is of no value as there is no evidence to connect them with each other. As such they cannot be connected with the crime in question and cannot be treated as a circumstance cor--roborating the testimony of the eye-witnesses. It may also e mentioned that the learned Sessions Judge found, inter alia--
(1) that the motive of the occurrence, as given by the prosecution was not proved. (Refer paragraph No. 9 of the impugned judgment at page 63, lines 25 to 27 of the paper-book);
(2) that Faizullah Khan, Badar Khan and Madad Khadi eye-witnesses were chance witnesses.
(Refer paragraph No. 12: page 64, lines 4 to 6 of the paper-book) ;
(3) that Abbas Khan, Badar Khan and Madad Khan eye witnesses are closely related inter se and were also connected with (i.e. Related to) the deceased. (Refer paragraph No. 13 of the impugned judgment-page 4 lines 31 to 34 of the paper-book);
(4) that "there was previous enmity between the accused persons of this case on one hand and Alam Khan (deceased), Abbas Khan P. W. 9, Badar Khan P. W. 12 and Madad Khan P. W. 13, on the other" (Refer paragraph No. 13 of the impugned judgment, page 64, lines 49 to 53).
However notwithstanding the above-noted findings, the learned trial Judge observed in paragraph No. 15 of his judgment that a-- "Taking the evidence of the four eye-witnesses as a whole, several facts about which there cannot be the slightest doubt, stand-out clearly. The first is that the four eye-witnesses were present at the time of the occurrence and the second is that they could have no motive for implicating the accused in a false case . . . . . . ."
In view of the above-noted four findings, the flaw in this conclusion is obvious.
We feel that the facts from which the learned trial Judge concluded that the motive for the offence "does not stand proved" also go to show that the witnesses have no respect for truth; that they are capable of making improvements and changing the prosecution version, as and when it suits them and that no reliance can, therefore, be placed upon them.
It will be recalled that according to the F. I. R. The alleged motive was that Samand Khan (acquitted accused) wanted the hand of Mst. Fatima, the daughter of the deceased. The latter, however, declined the request and 5/6 days prior to the occurrence and, instead, gave the rishta of Mst.
Fatima to another person; namely, Fatah Khan P. W.
7. A day prior to the marriage Samand Khan (acquitted accused) sent a message to the deceased that if he married his daughter to someone else it would not be good for him.
The defence, however, produced the original nikahnama Exh. D. G.) of the marriage between Fateh Khan P. W. 7 and Mst. Fatima, in which the date of the marriage has been given as 29-3-1968 i.e. About 9/10 months prior to the occurrence. At the trial, therefore, the P. Ws. Took up the position that although the 'Nikah' of Fateh Khan was performed with Mst. Fatima about 6/7 months prior to the occurrence, the rukhsati had not taken place, and that it was that ceremony which had been performed about 5/6 days prior to the occurrence. Fateh Khan (P. W. 7) the husband of Mst. Fatima also stated so but was confronted with his statement before the police and it was found that he had not said so there. He also admitted that Samand Khan (acquitted accused) who is alleged to have been demanding the hand of Mst. Fatima, was already married to his own cousin since 9/10 years prior to the occurrence; that his wife was alive ; and that they had children as well. Abbas Khan P. W. 9, the first informant, also introduced this change in his statement at the trial and insisted that he had made a similar statement in the F. I. R. But when confronted with the F. I. R., it was found that he had not said so there. He denied having stated before the committing Magistrate that "It was incorrect that nikah of my sister was performed with Fateh Khan P. W. 5/6 months before the occurrence that it was an oral nikah and that it was not registered." But when confronted with his statement before the committing Magistrate, it was found that he had stated so there. Similarly Badar Khan P. W. 12 stated before the committing Magistrate that the Nikah of Mst. Fatima was performed with Fateh Khan P. W. 7 3/4 days prior to the occurrence and he denied the suggestion that the nikah had been performed about 11 months before the occurrence.
It is not difficult to see that this change or improvement in their statements was made with a view to bring the same in conformity with the nikahnama produced by the defence and as already observed their conduct in making this improvement not only shows that the motive as alleged by the prosecution was false but also that they are absolutely unreliable witnesses who have no respect for truth and are capable of telling lies and changing their statements as and when it suited them.
It may also be mentioned that Abbas Khan P. W. 9 explained the reason of the presence of the deceased and himself at the place of occurrence as follows :- "I and my father were going to invite Fateh Khan P. W. To the dinner on that day as it is customary amongst us on account of the recent marriage of my sister with Fateh Khan on the 7th day of evening. It is also customary with us to extend this invitation at noon-time and neither before nor after that in the day."
Not only is this explanation absurd but is also belied by the fact that the marriage had to fact taken place 10/11 months earlier. It, therefore, knocks out the very basis of the prosecu--tion case inasmuch as the deceased and his son Abbas Khan P. W.
9. Had deliberately given a false reason for their presence at the spot at the time of occurrence. Keeping in view the defence version that it was they who had attacked Fateh Khan appellant, this attempt of giving a false explanation for their presence at the spot assumes great significance and in our view S tends to support the defence version.
It is also noteworthy that the eye-witnesses had stated in their statements before the police that all the accused had been armed with guns But at the trial an improvement was made H and they stated that while the others were armed with guns, Sher Dil appellant was armed with .303 rifle.
Since these witnesses belong to Mianwali District, it can be safely presumed that they are fully conversant with the difference between a gun and a rifle in this connection reference may be made to the following portion of the statement of Abbas Khan P. W. 9 :- "I can distinguish between a gun and a rifle. The accused were armed with guns. We call the rifle as gun also. Sher Dil accused was carrying a rifle while the other three accused were with guns. I stated in the F. I. R. Exh. P. A. That Sher Dil accused was armed with a rifle."
The reason for the above-noted improvement is obvious. The medical examination of the deceased disclosed that he had been hit by a rifle shot and not by the pellets of a gun. It was, therefore, found necessary to show that Sher Dil appellant was armed with a rifle. Once it is found that the improvement was deliberate and dishonest, it must, naturally, cast serious doubt on the veracity of the eye-witnesses.
9. The medical evidence also falsifies their testimony. According to the eye-witnesses Sher Dil appellant had fired at the deceased when he was running ahead of them and was about to enter the haveli of Bahadur Khan. This haveli is situated towards the right hand side and it is admitted that the deceased had to turn towards right in order to enter the haveli. As such in the normal course of events, the right side of the deceased would be exposed to the assailants who were behind him and the bullet of the shot fired by Sher Dil appellant should have hit him on the right side of his forehead. But the post-mortem examination revealed that the wound of entry made by the bullet was situated on the left side of the deceased's forehead. To furnish an explana--tion for this, the eye-witnesses introduced an improvement at the trial stage, and stated that just before entering into the haveli of Bahadur Khan the deceased had turned his face to look back at the assailants.
10. As already mentioned, it has been found by the learned trial Judge himself that three out of the four eye-witnesses, namely; Abbas Khan P. W.
9. Badar Khan. P. W. 12 and Madad Khan P. W. 13 are Closely related to the deceased and are inimical to the accused. It is, therefore, not necessary for us to enumerate the different enmities existing between parties, which have been brought on the record during the cross-examination of the said P. Ws Suffice it to say that being related to the deceased and inimical to the appellants they are interested witnesses in the accepted sense of the word and in view of a chain of authorities of the Supreme Court of Pakistan, their testimony requires posit, iv, and independent corrroboration before it can be relied upon As already mentioned there is no recovery of incriminating, articles in this case and although rifle P. 4 is said to have been recovered from Sher Dil appellant, but there is no evidence on the record to connect it with him. The learned Sessions Judge probably relied on the statement of Faizullah Khan P. W. 11 (whom he has held to be an independent end disinterested witness) as evidence corroborating the testimony of the other eye-witnesses. But after having gone through his statement, we cannot bring ourselves to agree with the learned trial Judge that he is an independent, disinterested or truthful witness. The learned trial Judge has .Himself conceded that he is a chance witness, as he, resides in another village, situated at a distance of 2-- miles frown the place of occurrence. He has explained his presence bear the place of occurrence in village Sawans by saying that he had gone there to purchase a goat from Nur Khan Jat but, as usual in such cases, the deal did not go through and he did not ultimately purchase the goat. He has admitted that he had no other work with any one else in village Sawans on that day. He has further admitted that "flocks of Zamindars go out for grazing in the morning and return in the evening." This would mean that there was no point in his going to the village before evening time. He made a flimsy attempt to cover up this mistake but the same is not convincing: This, witness too, has stated before the police in his statement under section 161, Cr.
P. C. That Sher Dil appellant was, armed with a gun but at the trial he made an improvement and- stated that he was carrying a bandook of Pakki-golf i.e. a rifle: He denied having stated otherwise before the police. But when confronted with the same he stood belied. This witness further admitted that he and Badar Khan P. W. 12 were being prosecuted, together with some other peons, for offences under sections 148 and 366/149, P. P. C., in the Court of a Magistrate at Mianwali. This definitely, shows his deep and close connection with Badar Khan P. W. 12 who is admittedly a near relative of the deceased and we do not see now, in the face of the above-- noted admission by Faizullah Khan P. W. 11, the learned trial Judge arrived at the conclusion that he was a disinterested and independent witness. As a result we find the testimony of this witness itself is so unreliable that it cannot serve to corroborate the evidence of the other three eye-witnesses who are admittedly related to the deceased and inimical to the accused party. We are therefore of the view that the testimony of the eye-witnesses cannot be relied upon. As such we feel that the evidence on the record is not sufficient to sustain the conviction of the appellants and the prosecution has miserably failed to prove its case against them. That being so, we need not consider the correctness or otherwise of the defence story put forward by Fateh Khan appellant because the accused are under no liability to furnish any explanation or put forward any defence version unless the prosecution has first proved its case against them.
11. The net result of the above discussion is that we accept the appeal and set aside the conviction as well as the sentences imposed upon the two appellants. The sentence of death awarded to Sher Dil appellant by the learned trial Court is not confirmed.
This disposes of the appeal as well as the reference.