' MUHAMMAD ISHAQ KHAN, J.-- Raid All son of Zafir Gul, aged about 25 years, resident of village Builandai, Katlang, Tehsil and District Mardan, stood his trial in the Court of Sessions Judge Mardan,- on the charges under section 302/34, P.P.C. He was found guilty of committing the murder of Saqib Shah deceased and was accordingly convicted and sentenced to imprisonment for life and a fine of Rs,20,000 or in default of payment of fine to suffer further R.I. For 4 years. The fine, if recovered, was ordered to be paid to the legal heirs of the deceased.
' The appellant has come up in appeal to this Court against his conviction and sentences recorded by the learned Sessions Judge, Mardan vide judgment, dated 29-3-1988. Similarly, Mst. Rooh Afza, complainant, has also filed Criminal Revision No, 33 of 1988 for the enhancement of the sentence of the appellant. We, therefore, propose to dispose of both the appeal as well as the revision by this single judgment.
2. The F.I.R. In this case was lodged by Mst. Rooh Afza (P.W.9) on 23-9-1984, who with the help of her co-villagers had taken the dead body of her son Saqib Shah on a cot to Police Station Katlang.
According to the F.I.R. Mst. Rooh Afza on the eventful day was coming to her house alongwith her son Saqib Shah (deceased) and Mst. Kankhwaba (P.W.10) from the house of the in-laws of her son and at about 16-45 hours when they reached a crossing near the house of Rafiq Shah, the accused party, namely, Zafir Gul, Raid Ali and Said Qarib Shah (co-villagers of the complainant) were standing there duly armed with topaks. At that time the deceased Saqib Shah was going ahead of his mother Mst. Rooh Afza and wife Mst. Kankhwaba, P.Ws. 9 and 10. No sooner they reached near the accused-party all of them fired at the deceased with which he was hit and fell to the ground.
Mst. Rooh Afza and Mst. Kankhwaba put down theirselves on the deceased and on their hue and cries Said Latif Shah (P.W.11) and Jaffar Shah (abandoned) were attracted to the spot. After firing all the accused fled away and they were seen as well by Said Latif Shah and Jaffar Shah while decamping from the spot.
' The motive for the commission of the offence is stated to be land dispute between the parties.
3. Muhammad Nazif Khan, S.I. (P.W.12) recorded the report of the complainant in the police station vide F.I.R., Exh.P.A. He also prepared the injury sheet, Exh.P.E., and inquest report Exh.P.F. Of the deceased and sent the dead body to the mortuary for post-mortem examination under the escort of F.C. Isteraj (P.W.2). He then visited the spot and during spot inspection he recovered 3 freshly discharged empties of .7 mm (P.1) and sealed the same into parcel vide memo. Exh.P.C. The I.O.
Also picked up blood-stained earth from the place of Saqib Shah deceased and sealed the same into parcel vide memo. Exh.P.D. Thereafter he prepared the site plan, Exh.P.B., at the instance and pointation of the eye-witnesses.
' This witness also searched for the accused but could not arrest them as they were not available in the village. He, therefore, applied for issuance of warrants and notices of proclamation against them. After recording the statements of the P.Ws. Including the marginal witnesses, he handed over the remaining investigation to the S.H.O. Concerned, who after the arrest of Raid Ali accused submitted supplementary challan against him on 15-9-1985.
4. Dr. Ajmal Khan (P.W.1) conducted the autopsy on the dead body of Saqib Shah, deceased, on 23- 9-1984 at 5-40 p.m. And found the following on external examination:- (1)
A fresh fire-arm entrance wound on the posterior aspect of lower and of left ear. It is round and directed inter() superiorly: size 1/2" x 1/2". Charring marks present in 3" area.
(2) A fresh fire-arm entrance wound on the medial half of left eye. It is directed to the right eye and little upward. It is round and blackening present.
(3)A fresh fire-arm exit wound on the face about 4" x 5" size, with lacerated everted margins, causing fracture of frontal bone. Lateral temporal bones are also fractured. The nasal bones are fractured. The bones of forehead are fractured into pieces. Brain matter is out. Both eye balls are bulging out. It is common exit for wound No,1.
' On internal examination the doctor found the scalp, skull and left mandible of the deceased fractured. The brain, facial and sereberal vessels were injured. The mouth of the deceased was also found injured. The stomach was not injured and containing fluid diet.
' In the opinion of the doctor the death was caused due to fire-arm injuries to the vital organs (brain) of the deceased coupled with haemorrhage and shock. The death was instantaneous while time between death and post-mortem examination was within 2 to 3 hours.
5. At the trial the prosecution examined as many as 12 witnesses in support of its case. The appellant when examined at the trial denied the charge and said that the prosecution witnesses are interested and inimical towards him.
6. The prosecution case mainly rests on the ocular testimony of the two eye-witnesses, namely, Mst. Rooh Afza (P.W.9) and Mst. Kankhwaba (P.W.10). These witnesses have been further supported by Said Latif Shah (P.W.11) who corroborated the version of the complainant by stating that he came to the spot when the accused were decamping from the scene and he saw them in the way while the P.Ws. Mst Rooh Afza and Mst. Kankhwaba also told him on his inquiry that the deceased was done to death by the accused. Besides this, the learned Sessions Judge also kept in view the recoveries made from the spot and motive for the commission of the offence while recording conviction of the appellant.
7. It is, however, important to note that the learned trial Court did not rely on the evidence of the above-stated eye-witnesses so far as involvement of Zafir Gul accused (father of the appellant) in the commission of the offence was concerned. He was, therefore, acquitted by the trial Court and the State did not file any appeal against his acquittal. In Muhammad Aslam and others v. The State 1988 SCMR 940 the following observations have been made by their Lordships of the Supreme Court:- "S. 302/307/34--Appreciation of evidence--Ocular testimony--Eyewitnesses not found entirely reliable and despite their testimony eight out of twelve accused were acquitted--Mere fact that rest of accused were ascribed specific roles in occurrence while this was not so in case of acquitted co-accused, held, would not by itself furnish a safe basis for their conviction by drawing distinction."
' In this case all the accused were on the same footing before the trial Court as according to the ocular evidence all of them had allegedly fired one shot each at the deceased.
8. Coming to the ocular account of the case it may be mentioned that the eye-witnesses being closely related to the deceased and having the alleged land dispute with the accused-party, their testimony would indeed require careful consideration for coming to a definite conclusion as to whether or not they have stated the truth.
9. Mst. Rooh Afza (P.W.9) who is also the lodger of the F.I.R. Has disclosed in her statement at the trial that Zafir Gul (the acquitted accused) is her stepson while Raid Ali Shah, appellant, is her grand son. This witness has further disclosed that Mst. Kankhwaba (P.W.10) is her daughter-in-law (widow of the deceased) and Said Latif Shah (P.W.11) is the son of her brother-in-law. She has admitted that Said Latif Shah (P.W.11) was charged for the murder of one Raziq Shah (brother of Zafir Gul, acquitted accused). According to her on the eventful day she alongwith her son Saqib Shah (deceased) and Mst. Kankhwaba, daughter-in-law, left her house at 9 a.m. And went to the house of the in-laws of deceased, namely, Mir Muhammad. She further stated that the deceased, her daughter-in-law and she herself started their return journey from the house of Mir Muhammad at 4-30 p.m. It is also in her evidence that a road is passing towards the north of the house of Rafiq Shah which runs east west and the said road links village Bilandai on east and the house of Mir Muhammad on the north. She has further admitted that on either side of the road between Bilandai and the house of Mir Muhammad there is Abadi. She has further deposed that her house is towards the north of the road which links village Bilandai and house of Mir Muhammad. In this context a look at the site plan would reveal that on the day of occurrence the complainant party was not on that road which links village Bilandai on the east and the houses of the complainant and Mir Muhammad towards the north of the same. P.W.10 Mst. Kankhwaba has admitted in her statement that while going and coming to the house of her father, they use to adopt the path which runs in the fields. Mst. Rooh Afza (P.W.9) has further stated in her statement that a path which runs in front of the house of Rafiq Shah links the main road towards the eastern side. The said path has been shown in the site plan on which at the relevant time the presence of the three accused is shown at points Nos. 4, 5 and 6 whereas the presence of the complainant party is shown at points Nos. 1, 2 and 3 on the main thoroughfare running east and west. She has further stated that at the relevant time the deceased was at a distance of about 6 paces from the accused and that the accused were towards the west on the main thoroughfare while the deceased was towards the east. The statement of the complainant is in conflict with the site plan wherein the presence of the accused- party is not shown on the main thoroughfare running east-west but their presence is shown on the path near the house of one Maghfoor Shah towards the north of points 1, 2 and 3. It may also be mentioned here that both the eye-witnesses have stated that the occurrence took place in front of the house of Rafiq Shah whereas according to the site plan the occurrence took place near the house of one Maghfoor Shah. Both the eye-witnesses have also admitted that the path in question is in front of the house of Rafiq Shah but in the site plan the said path is situated towards the western side of the house of Maghfoor Shah. Further, the complainant has disclosed in her statement at the trial that the house of Said Latif Shah is towards the east of the spot whereas the said house is shown at point 'C' in the site plan to the south of the venue of occurrence. In these circumstances it can be said without any fear of contradiction that either the witnesses have not spoken the truth or the investigation of the case has not been properly conducted.
' It is also in the evidence of P.W.9 that, 'all the accused were coming towards us on the thoroughfare. All the accused were proceeding in a straight line. They were proceeding shoulder to shoulder. Raid Ali Shah accused was towards the west followed by Said Qarib Shah accused and Zafir Gul towards the east'. As against this P.W.10 (widow of the deceased) has stated that, 'I saw the accused for the first time from a distance of 5/6 paces from me. I alongwith my husband and Mst. Rooh Afza were going on the Katcha thoroughfare. I was at a distance of about 8/10 paces from the house of Said Rafiq Shah when I saw the accused. At that relevant time the accused were towards the west of us'. Here the eye-witnesses have again contradicted each other on the point of locations of the accused-party. Further, if according to (P.W.10) she was at a distance of about 8/10 paces from the house of Said Rafiq Shah when she saw the accused, in that case the site plan would belie the version of (P.W.10) as it cannot be said with certainty that points Nos.4, 5 and 6 were clearly visible to her.
10. The ocular evidence with regard to the distance from which the accused-party fired at the deceased is also inconsistent with the medical evidence. According to the eye-witnesses the deceased was fired at from a distance of about 6 paces while the medical evidence shows that the deceased was fired at from a close range as charring and blackening were present around the wounds on the person of the deceased.
' Both the P.Ws. Have also contradicted each other about the time of departure from the house of Mir Muhammad. According to (P.W.9) they left the house of Mir Muhammad at 4-30 p.m. Whereas (P.W.10) has stated that they left the house at 4 p.m. We have also noticed that the prosecution has laid great stress on the point that the occurrence having taken place in a broad delight, the ocular evidence could not be discarded merely on the ground of relationship. But this aspect of the case, in our view, also goes against the prosecution, for, when the occurrence took place in a broad daylight and that too in the village Abadi, then why no independent evidence was produced to support the case of the prosecution. It is unfortunate that these features of the ocular evidence were not noticed by the trial Judge which are sufficient for drawing a conclusion that the eye- witnesses have not given the correct version of the incident and therefore, their testimony is not worth reliance.
11. So far as evidence of Said Latif Shah (P.W.11) is concerned, his testimony is also not worth reliance because he is not only related to the deceased party but is also inimical towards the accused. He had admitted that he was charged for the murder of the brother of Zafir Gui, acquitted accused, but was acquitted. Further, he has also contradicted the testimony of the eye-witnesses. According to him he found the deceased Saqib Shah lying dead in the field. At another place he has stated that the place of the deceased was towards the south of the house of Rafiq Shah. According to the site plan the place where the deceased fell to the ground after the receipt of fire-arm injuries is on the thoroughfare which runs east-west and not in the fields. Further, the deceased as lying on the thoroughfare towards the south of the house of one Maghfoor Shah and not Rafiq Shah. In the site plan the house of Maghfoor Shah is shown contiguous to the house of Rafiq Shah towards its western side on the same thoroughfare where the alleged occurrence took place but this witness has stated that the house of Maghfoor Shah is towards the north of the house of Rafiq Shah. This witness has also stated that he and hirer Shah P.Ws. Reached the deceased simultaneously i,e, at the same time approximately. As against this the eyewitnesses have disclosed the time of arrival of these two at the spot with an interval of 2 to 3 minutes respectively soon after the occurrence. As stated earlier this witness being an interested one, it was necessary for the trial Court, in the G facts and circumstances of the case, to have searched for some independent corroboration in support of his evidence, which is not the case here.
12. The medical evidence in this case is also contrary to the ocular evidence. According to the medical evidence the deceased received only two fire-arm inlet wounds whereas according to the eye-witnesses all the three accused fired one shot each at the deceased. From the spot 3 empties were recovered but the same were not sent to the Expert for opinion as to whether the same were fired from one rifle or different rifles, keeping in view the fact that the eye-witnesses had not attributed specifically the fatal shots to any of the accused while firing at the deceased. According to the Investigating Officer (P.W.12) the empties recovered from the spot were sent to the Expert for safe custody and the same were not examined as no weapon was recovered in this case.
Furthermore, Zafir Gul accused has been acquitted by the trial Court which fact also creates doubt about the recovery of 3 empties from the spot and in the circumstances it can also be said that it might be the job of one person's firing, whosoever he may be. The circumstantial evidence is thus inconsistent with the eye-witness account of the occurrence and does not provide sufficient corroboration to prove the guilt of the accused-appellant. In Darey Khan and another v. The State 1972 SCMR 578 it has been held that:- "S.302--Murder case--Benefit of doubt--Prosecution story that each one of two accused fired one shot each and both hit deceased contradicted by medical examination revealing only one hit, of two wounds one being of entrance and other of exit--Broken pieces of only one bullet recovered from spot. .. Ocular evidence interested and inimical--Dying declaration of deceased, in circumstances, held, could not be relied upon--Accused given benefit of doubt and acquitted."
13. About abscondencc of the appellant it may be mentioned that mere abscondence of an accused person is of no help to the prosecution as has been held in a number of authorities.
14. The upshot of the above discussion is that in our view the eye-witnesses being closely related and inimical towards the appellant, their testimony is not inspiring confidence. The circumstantial evidence also contradicts the eye-witness account of the case and the prosecution has miserably failed to bring home charge to the appellant beyond any shadow of doubt, the benefit of which must go to the accused-appellant. We, therefore, accept this appeal, set aside the conviction and sentences of the appellant under section 302/34, P.P.C. And acquit him of the charge. He shall be released forthwith if not required in any other case.
15. As we have acquitted the accused-appellant, therefore, the criminal revision filed by the complainant for the enhancement of the sentence automatically fails and is hereby dismissed.
Appeal accepted.