'MUHAMMAD ISHAQ KHAN, J.-- Shah Pasand son of Nasrullah, appellant, has filed this appeal against the judgment dated 10-3-1988 of learned Sessions Judge Malakand at Batkhela whereby the appellant was found guilty of the charge under section 302, P.P.C. And was convicted and sentenced to imprisonment for life and a fine of Rs,10,000 or in default of payment of fine to undergo further R.I. For one year. Half of the fine, if realized, was ordered to be paid to the complainant or legal heirs of the deceased under section 544-A, Cr.P.C. As compensation.
2. Brief facts of the case are that on 3-4-1983 at 19-35 hours Abdul Hanan complainant son of Firdous resident of Menha, lodged a report in Police Station Kot to the effect that on the fateful day he along with his son took their evening meals at home and left the house for Hujra, but when reached near the shop of Hashim Khan which was closed at that time, accused Shah Pasand, who was standing there duly armed with a shotgun, immediately fired at his son Abdul Wahid as a result of which his son was hit and died at the spot. According to the complainant the deceased was employed in the Army and had come on two months leave.
' The complainant, however, showed his ignorance about motive for the commission of the offence.
He cited Fazal Qadir son of Gul Qadar and Guldar son of Gul Muhammad as eye-witnesses to the occurrence who were present on the spot at the relevant time and had witnessed the occurrence.
3. The complainant party per their joint statement available on record, however, refused to hand over the dead body of the deceased to the Investigating Agency for dispatching the same to the mortuary for post-mortem examination.
4. Taimoor (P.W.4) who was Moharrir during the days of occurrence in levy post Kot after recording the F.I.R. Exh.P.A., under the supervision of Hussain Khan (P.W.8) Post Commander proceeded alongwith him to the spot but as the dead body had already been removed from the scene, therefore, they prepared the injury-sheet, Exh.P.M./1, of the deceased in his house. They also prepared inquest report, Exh.P.M./2, and took into possession blood-stained clothes of the deceased vide recovery memo. Exh.P.R./1 in presence of Mukarram Khan, P.W.2, as marginal witness. Hussain Khan, P.W.8, also prepared the site plan Exh.P.B., at the instance and pointation of the complainant.
5. As the accused was not available for arrest, therefore, proceedings under sections 204 and 87, Cr.P.C. Were also initiated against him. He was however, arrested from Peshawar on 31-1-1987.
6. At the trial the prosecution examined as many as 8 witnesses in order to prove its case against the accused. The accused was also examined under section 342, Cr.P.C. As well as section 340(2), Cr.P.C. But he denied the allegations and claimed innocence.
7. We have heard the learned counsel for the appellant as well as for the State and have also carefully gone through the record of the case.
8. The learned counsel for the appellant assailed the judgment of the learned trial Court on so many grounds and vehemently contended that the learned trial Court had not taken the ocular account as well as circumstantial evidence of the case in its true perspective.
9. Before coming to the credibility of the ocular account it may be pointed out here that though mere assertion of relationship of the eye-witnesses with the deceased would not provide a clean chit of acquittal to an accused person, but at the same time it is also the duty of the Courts to take into consideration with great care and caution the testimony of the related eye-witnesses of the deceased for the safe dispensation of justice. While going through the judgment of the trial Court we have, however, noticed that the trial Judge has not taken the requisite care while assessing the eye-witness account of this case.
10. Abdul Hanan (P.W.6) is the star witness of the prosecution. He is also father of the deceased.
According to him he was in the company of the deceased at the time of occurrence. In his statement he has totally belied the contents of the F.I.R. In the F.I.R. As well as in his statement at the trial this witness has categorically stated that after taking evening meals at home they left the house for Hujra. It may be mentioned here that the occurrence took place in the month of April in which the time of sunset would probably be round about 06-35 p.m. Even if the above deposition of the witness is taken to be correct in that case too it can be said with certainty that when he offered Maghrib prayers and took evening meals in the house, by that time sufficient darkness would have spread over. Though in the F.I.R. The time of report is given as 7-35 p.m. But it creates doubt about the time of report as Hussain Khan (P.W.8) Post Commander has clearly admitted in his statement that the complainant reached the post at 7-45 p.m. And after making certain inquiries from him his report was recorded after about 10 minutes of his arrival.
11. In the F.I.R. The complainant has stated that:- {{URDU TEXT}} ' but at the trial he has clearly changed this version by saying that:- "After firing my deceased son had told me that he was killed by Shah Pasand without any fault and no other words were exchanged between us.
Obviously the complainant has made improvement and rather has tried to introduce a new story of the occurrence by making it a case of oral dying declaration which is, however, not the case of the prosecution. It is also a matter of record that this witness was serving in Malakand Levy and was on leave. When questioned about his leave he stated that he had taken leave orally and there is no need to submit any written application. He has further disclosed in his statement that Mst.
Menha is the wife of his son Badshah Khan who has left his house and in that respect they had charged Hazrat Hussain, Mst. Ambara and Menha. They were also tried in the Sessions Court but acquitted.
12. At another place this witness has also given a confused reply by saying B that immediately after the occurrence a number of villagers had gathered on the spot. He did not talk to any one of them about the name of the accused and that all the villagers were in the know of the accused. Just after this he has stated that he did not know about the motive. If from the words 'all the villagers were in the know of accused' it is presumed that all the persons who gathered at the spot had seen the accused while firing at the deceased then in that case why a single independent witness was not produced at the trial in support of the version of the complainant. If it is presumed that due to their open enmity with the accused, the villagers were in the know of the accused in that case too broad fact remains that the prosecution has not come to the Court with clean hands by concealing the fact of enmity. Thus, in our view the above facts are sufficient for holding that Abdul Hanan (P.W.6) is not a truthful witness and he has either not seen the occurrence with his own eyes or he was not able to identify the culprits because of sufficient darkness at the relevant time.
13. Gul Dar (P.W.7) has also contradicted the statement of P.W.6. He has stated that the complainant is his brother-in-law. He has further stated that at the time of occurrence Azan' of `Maghrib' was not called. Here this witness has totally belied the version of P.W.6 whose stand right from making of the F.I.R. Was that after offering `Maghrib' prayers and taking evening meals he went out of the house. Gul Dar (P.W.7) has also admitted in his statement that he might have been examined under section 161, Cr.P.C. After about 5/10 days of the occurrence. In Muhammad Iqbal v.
The State 1984 SCMR 930 it has been held that:- "Section 302.-- Murder--Witness--Credibility--Statement of witness recorded 15 or 20 days after incident--Held, reliability of such witness is always questionable."
' In these circumstances the testimony of P.W.7 is also not worth reliance as he has contradicted the complainant of the case on material points involved in the case.
14. So far as the circumstantial evidence in the case is concerned, we are of the firm view that in absence of the recovery of the crime gun from the appellant; absence of the blood at the spot where the deceased was allegedly hit at the time of occurrence; the omission to send the clothes of the deceased to the Chemical Examiner for analysis; failure of the Investigating Officer to take into possession the blood-stained cot on which the deceased was placed after the occurrence, and non-existence of the motive -- how the prosecution could get any benefit of such a weak type of circumstantial evidence. The injury-sheet of the deceased is also in direct conflict with the site plan. Hence mere placing reliance on the ascendance of the accused would not be sufficient for holding the accused guilty of the charge.
15. According to the site plan the occurrence took place quite near the house of the complainant.
However, no blood was found on the place where the deceased fell to the ground after receiving fire-arm injury. Similarly, no cardboard disc or pellets were recovered from the place of occurrence to show that actually the occurrence took place at point No,1 shown in the site plan. It is also an admitted fact that when the Investigating Officer reached the spot the dead body was removed from the scene. The contradiction between the injury-sheet and the site plan also suggests that no one was present with the deceased when he was allegedly done to death. The argument of the learned counsel for the appellant that it was quite an unseen incident could not be controverted by the learned A.A.-G. Appearing on behalf of the State and rightly too because from the ocular as well as circumstantial evidence the required corroboration is not forthcoming against the appellant which fact entitles him to the benefit of doubt, not as a matter of grace but as of right, because the prosecution has not proved its case against the appellant beyond any reasonable doubt.
16. We may also consider in this case the fact that the witnesses were examined by the learned trial Judge on oath instead of solemn affirmation although under section 6 of the Oaths Act, 1873 a Muslim witness shall he examined on solemn affirmation. No doubt, there was effected amendment in the said Act by Ordinance No, XXVII of 1981 where under a Muslim witness shall be examined on oath instead of solemn affirmation. But the Oaths Act, X of 1873 was extended to the Provincially Administered Tribal areas of the Province of G which the Malakand Protected Area forms a part by N.-W.F.P., Regulation II of 1976, however, Ordinance No, XXVII of 1981 Making amendment in the Oaths Act has not been extended to PATA as yet and as such the learned Sessions Judge has been found to have erred in examining the witnesses on oath instead of solemn affirmation. Secondly it appears from the record that the learned Sessions H Judge has examined the appellant under section 340(2), Cr.P.C. In consequence of his reply to a question asked from him while being examined under section 342, Cr.P.C. Which was also not required, as Ordinance XII of 1985 amending section 340(2), Cr.P.C. Has also not been extended through a Regulation to the aforesaid area. We need not comment further on these points for the reasons that any omission or irregularity in the administration of oath or solemn affirmation is curable and no prejudice has been caused to the accused-appellant by examining him on oath as aforesaid.
17. The nutshell of the above discussion is that the eye-witness account of the occurrence is not worth reliance and is liable to be discarded so far as the involvement of the appellant for the commission of the offence is concerned. Further, on the one hand the eye-witnesses have made improvements and on the other contradicted each other on the material points of the case. ##TSE# After discarding the eye-witness account of the incident though the circumstantial evidence itself loses its value but it is not the case here as the circumstantial evidence in the case in hand too is of zero nature and does not provide any help to the prosecution. We, therefore, accept this appeal, set aside the conviction and sentence of the appellant under section 302, P.P.C.
And acquit him of the charge. He shall be released forthwith if not required in any other case.