' MUHAMMAD ISHAQ KHAN, J.-- This State appeal under section 417, Cr.P.C. Is preferred against the judgment, dated 20-10-1982 of Mr. Muhammad Nawaz Khan, Sessions Judge, Mardan, whereby the accused-respondents were acquitted of the charges under section 302/307/404/34, P.P.C.
2. Briefly stated the facts of the case are that P.W. Farhad with the help of residents of village Bazar brought the dead body of his deceased father (Shamshad) to Police Station Rustam on 23-5-1981 at 1830 hours and lodged the report to the effect that he alongwith his deceased father and one Zarshad, his cousin, had gone to the hill known as 'Wand Ghakhey' a day prior to the occurrence for receiving `Qalang', as they have 'Banda Jaat' in the hill where `Gujars' are living and they received 12alang' from them every year. On their way back the father of the complainant was going ahead of them having a shotgun and when they reached near `Nakhtar Soray' the accused-party, namely, Sultan Muhammad, Mandan, Sikandar and Salim, residents of village Bazar started firing at them as a result of which his father received injuries on his head and other parts of the body and fell to the ground dead. The complainant and his cousin Zarshad ran away from the spot. When the accused decamped the complainant and his cousin Zarshad came to the spot where many people had gathered and they saw the deceased lying dead. The complainant has further stated in the report that the unlincensed shotgun, which the deceased was carrying at the relevant time was, however, not available as the same had been taken away by the accused-party.
' Regarding motive, the complainant said that the accused are his relations and there is a dispute over a hill and before this, his uncle was also murdered.
3. After registration of the case vide F.I.R. (Exh.P.A) the S.H.O. Yar Muhammad Khan (P.W.8) prepared injury-sheet (Exh.P.J.) and inquest report (Exh.P.K.) of the deceased and sent the dead body to the mortuary under the escort of Muhammad Ghulam F.C. (P.W.4) for post-mortem examination. The Investigating Officer then left for the spot at about 1900 hours and when he reached the scene of occurrence it had become dark, therefore, he deferred the spot inspection to the following morning. On 24-5-1981 he inspected the spot and prepared the site plan (Exh.P.B.) at the instance and pointation of P.Ws. Farhad and Zarshad. Thereafter he recorded the statements of the P.Ws.
During spot inspection, the Investigating Officer took into possession blood-stained earth, vide memo. (Exh.P.C.). He also recovered from the spot two spent bullets (Exh.P.1) vide memo. Exh.P.D.
Two branches of `Kambela' tree (Exh.P.2) allegedly hit with the fire-shots, were also taken into possession by the Investigaing Officer vide recovery memo. Exh.P.E. He also recovered from the spot 4 empties (Exh.P.3) and sealed the same into parcel vide memo. Exh.P.G. In presence of the marginal witnesses. 3 cardboards (Exh.P.4) were also recovered by the Investigating Officer and sealed into parcel vide memo. Exh.P.G. In presence of the marginal witnesses. That Investigating Officer was still busy in the investigating the case when in the meantime Muhammad Ghulam (P.W.4) brought from the mortuary blood-stained shirt (P.5), Shalwar (P.6) a pair of shoes (P.7) of the deceased and a phial (P.8) containing 7 pellets extracted from the dead body of the deceased and produced the same to the Investigating Officer, who took them into possession vide memo.
Exh.P.H. All the recoveries were effected in presence of the marginal witnesses, namely, Nobat Khan (P.W.2) and Palos Khan (abandoned witness).
' Accused Sultan Muhammad and Salim were arrested in the case soon after the occurrence while Sikandar and Mandan were not available and therefore, warrants under section 204, Cr.P.C.
Followed by proclamations under section 87, Cr.P.C. Were issued against the absconding accused.
Arrest of the absconding accused Sikandar and Mandan was, however, effected on 19-6-1981.
4. Dr. Muhammad Usman (P.W.1) conducted post-mortem examination on the dead body of the deceased on 24-5-1981. At 7-30 a.m. And found the following injuries on external examination:-
(1) A big lacerated wound of head, which starts from the lateral aspect of one eyebrow to the lateral aspect of the other eyebrow (right and left) measuring 8" long and 7" broad. The eye-balls are completely destroyed. The scalp and skull hones are severely destroyed alongwith brain contents which are exposed. The skull bone frontal and half of parietal region is fractured into pieces. Both jaws are dislocated and charring marks are present on his face.
(2) Two small lacerated wound 1/3" in diameter and 1/2" x 1/3" are lying on the upper 1/3rd of left eye lateral side. This wound is wound of entrance.
(3) Three lacerated wound 1/2" in diameter and 1/2" x 1/3" in diamcter on the medial aspect of left thigh. These are exit wounds from which one pellet is removed.
(4) Three wounds round in shape 1/2' in diameter (two wounds) and one wound is 2/3" x 1/2" in diameter on the left lumber region back lateral side. It is the exit of wound No,5.
(5) Four wounds on the left lumber region which are 1/3" x 1/3" and 1/2" x 1/3", 2/3" x 1/3" and 1/2" x 1/2" to the front These are the wounds of entrance of wound No,4.
(6) Three wounds which are 1/3" x 1/3", 1/2" x 1/3" and 1/2" x 1/2" on the medial aspect of left upper arm above the elbow are the wound of entrance.
(7) One wound on the lateral aspect of left upper arm from which two pellets removed. The bone of the upper arm is fractured. It is the wound of exit.
(8) One wound on the sub-costal region of left side abdomen. One pellet is removed.
(9) Three lacerated wounds on the right shoulder girdle (back) 1/2" x 1/3", 2/3" x 1/2" and 1/2" x 1/2", shoulder bone is fractured. Two wounds near the neck back side which are 2/3" x 1/3" and 1/3" x 1/3" are entrance wounds of wound No,10.
(10) One wound on the chest 2/3" x 1/2" sternal bone is fractured. It is the wound of exit of wound No,9. Three pellets removed from this wound.
(11) One oval shape on the upper 1/3rd of thigh (left which is 1/2" x 1/3" and deep to the skin level.
(12) Multiple abrasions are present on the body and the skin has been removed from the right arm, right leg and left and rightsidc hack.
' On internal examination the doctor found the skull of the deceased severely fractured and brain contents injured. Thorax walls were also found injured while 4th and 5th ribs were fractured on right side. Pleurae on the right side was also injured with blood vessels of the affected area. Left walls of the abdomen lumber region and left hypochondrium were injured. Left upper arm, right side shoulder bone sternum were also fractured.
' In the opinion of the doctor the death was caused on account of shock and haemorrhage leading by fire-arm injuries.
' The doctor also recovered seven pellets weighing 426 grains from the dead body and entrusted the same to P.W.4 Muhammad Ghulam who had escorted the dead body. Probable time between death and post-mrotem examination was 18 to 22 hours whereas the death was instantaneous.
5. All the four accused-respondents denied the charges and claimed trial. The prosecution in order to prove its case against the accused-respondents produced as many as 8 witnesses- at the trial.
The accused-respondents were also examined and they again professed their false involvement in the case due to previous enmity with the complainant party.
6. We have heard the learned counsel for the parties and have also perused the record of the case.
7. The main argument of the learned counsel for the State is that the learned trial Court has failed to appreciate the eye-witness account which was fully supported and corroborated by circumstantial evidence on record.
8. In this case the eye-wintesses of the occurrence are Farhad, complainant (P.W.5) and Zarshad (P.W.6). P.W.5 Farhad is the son and P.W.6 Zarshad is nephew of the deceased. Farhad (P.W.5) in his statement has stated that he alongwith his deceased father and Zarshad (P.W.6) had gone to 'Wand Ghakhey' so as to collect the cess, as they own their lands in those hills where `Gujars' live and used to pay them 1)alang' every year. He has further stated that they spent the night in `Wand Ghaghey' with one Sherin (their tenant) and on the following day after offering `Zohar' prayers they started back their journey and reached `Nakhtar Soray' where, the accused-party, namely, Sultan Muhammad, Mandan, Sikandar and Salim, sitting on a side of the road, started firing at them with which Shamshad deceased was hit and died at the spot. In cross-examination he has deposed that on hearing the fire-shots they ran away towards `Ghakhey Banda' but could not reach there.
He has further stated that they met Sherin when running towards `Ghakhey Banda'. It is also in the evidence of this witness that when they returned to the place of occurrence the people of the locality had already arrived at the scene. According to this witness Sherin brought a cot from the Hujra of `Ghakhey Banda' and placed on it the dead body of the deceased with the help of others.
' P.W.6 Zarshad in his statement before the Court has stated that after running from the scene of occurrence they reached back to the house of Sherin and narrated the occurrence to him. He has also stated that when they returned to the scene of occurrence nobody was present there.
9. Admittedly, the prosecution witnesses are related inter se and also related to the deceased. Old blood feud also exists between the complainant and accused party. So, as a rule of prudence and for safe dispensation of justice, their evidence would require corroboration by some other independent and disinterested evidence, which is, however, lacking in the case in hand.
' The alleged recoveries made from the spot by the Investigating Officer have been witnessed by Nobat Khan (P.W.2) as Mashir (Lumberdar) and one Palos Khan. Palos Khan has not been produced at the trial being unnecessary witness. P.W.2 Nobat Khan has admitted in his cross-examination that the deceased was the husband of the sister of his wife. As such, attestation of the said recovery memos. By P.W.2 would make the recoveries doubtful because he is a person highly interested and inimical towards the accused-respondents. Even otherwise, if it is presumed that the recoveries have been made from the spot in that case too the case of the prosecution would be on weak footing against the accused-respondents as no weapon of offence has been recovered from the accused, therefore, the empties allegedly recovered from the spot could not be got matched with the crime weapon.
10. While going through the statements of the two eye-witnesses we have also noticed that Sherin `Gujar' was an important witness for the prosecution as, according to the eye-witnesses, it was he who met them soon after the occurrence; arranged a cot; placed the dead body thereon with the help of others; and it was he who could alone verify the fact that the eye-witnesses spent the night with him in `Ghakhey Banda' a day prior to the occurrence, because the eye-witnesses have categorically stated in their statements that they did not meet with any one else in the way except Sherin `Gujar' with whom they had spent the night, but strangely enough this witness has not been produced by the prosecution having been won over by the other side. Sherin was admittedly the tenant of the deceased and not the accused. Thus, in our view, had he appeared at the trial he would not have supported the prosecution case, viz. Presence of the eye-witnesses with him on the preceding night of occurrence. This conclusion also gets support from the ocular and circumstantial evidence of the case. Nobat Khan (P.W2) has stated in his cross-examination that when he alongwith other co-villagers started towards `Ghakhey Banda' they came across the dead body which was being brought down from the mountain by Burai, Malang (abandoned), Bchram and Khan Shah `Gujar' (abandoned). Thus, there is no mention of the two alleged eye-witnesses who, according to their deposition, were present with the dead body right from the spot to the police station.
11. From the evidence it is evident that the occurrence took: place all of a sudden. According to the statements of the eye-witnesses, on hearing the fire shots they saw the accused party. At the trial they were also not definite about the kind of weapons which were being carried by the accused party and have simply stated in their statements that 'they may be armed with shot-guns'. Keeping in view this state of record, it does not appeal to common sense how the witnesses identified the accused with their respective positions as detailed in their statements when there was no occasion for them to even look at the weapons in their hands. Similarly, keeping in view the same situation coupled with the factum of old blood feud between the parties it can also be said that why the accused-party spared the son and nephew of the deceased, who both, according to the site plan, were in the firing range of the accused. The learned trial Judge has, therefore, rightly observed that the accused would not have spared the son and nephew of the deceased, had they been present so close to the deceased at the time of occurrence. From the ocular as well as circumstantial evidence of the case it can, therefore, be safely concluded that either Farhad and Zarshad, P.Ws.
Were not present with the deceased at the time of occurrence or they have not identified the culprits at the relevant time. Only on the basis of a weak type of E circumstantial evidence, when ocular evidence is discarded, no one could be held guilty of an offence the punishment for which entails death or life imprisonment. In cases of old blood feud motive becomes a double-edged weapon which cuts both ways, as has been held in numerous authorities on the point.
12. The learned State counsel also tried to convince us that the learned trial Judge has not taken serious note of the abscondence of the accused. However, in our view, mere abscondence of the accused for some days from their village per se is of no help to the prosecution in absence of disinterested/independent evidence on record.
13. The net result of the above discussion is that the learned counsel for the State has failed to point out any illegality in the impugned judgment which is based on correct appreciation of the evidence on record. As such, we hold that the impugned judgment does not call for interference by this Court and the appeal filed by the State deserves dismissal and we order accordingly. The accused-respondents, present in Court on bail, are hereby discharged from the obligation of their bail bonds.