' MUHAMMAD ISHAQ KHAN, J.-- Wakeelur Rehman, aged about 35 years, son of Shamshad and Murad, aged about 32 years, son of Muhammad Umar, residents of Surkh Dheri, Police Station Rustam, accused-appellants, stood their trial in the Court of Mr. Attaullah Khan, Additional Sessions Judge, Mardan on the charge under section 302/34, P.P.C. For the murder of Ghulam Hussain deceased. They were found guilty of the charge. Wakeelur Rehman appellant was awarded conviction under section 302/34, P.P.C. And he was sentenced to death with a fine to the tune of Rs,10,000 out of which a sum of Rs,5,000 was ordered to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default thereof to undergo further imprisonment for 3 years.
Murad, appellant, was also convicted under section 302/34, P.P.C. And sentenced to imprisonment for life with fine of Rs,6,000 out of which a sum of Rs,3,000 was to be paid to the legal heirs of the deceased as compensation or in default of payment of fine to suffer R.I. For 2 years.
2. Both the convicts have filed Criminal Appeal No, 202 of 1988 against their conviction and sentences and there is also a Murder Reference No, 17 of 1988 for the confirmation of death sentence of Wakeelur Rehman. We propose to dispose of both the matters by this single judgment.
3. The prosecution case, in brief, is that on 21-3-1984 at 11-30 a.m. Jalandar P.W. Brought the dead body of Ghulam Hussain deceased in a cot on foot to Police Station Rustam and lodged a report, Exh.P.A., to the effect that on the eventful day he alongwith Nisar Muhammad, his sister's son, Said Wali son of Haji Muhammad Wali and Ghulam Hussain deceased son of Munawar, residents of Heerawand, left for Chargul to the house of his uncle Saida Gul from the Mandi of Said Wali. When they reached on the path of Chargul near the road proceeding to Bunair at 11 a.m., they spotted the appellants Wakeelur Rehman son of Shamshad and Murad son of Muhammad Umar, residents of Surkh Dheri, duly armed with topaks, who on seeing them fired one shot each at Ghulam Hussain deceased. The shot fired by Murad accused proved abortive while with the fire-shot of Wakeelur Rehman, Ghulam Hussain was hit and fell to the ground dead. After the occurrence the accused decamped from the spot. The occurrence was witnesses by Nisar Muhammad and Said Wali P.Ws., besides Jalandar, complainant.
' Motive, as disclosed in the F.I.R., was that one month prior to the occurrence the accused had demanded some money from the father of Ghulam Hussain, who refused to comply with their demand and hence the present occurrence.
4. Bahadur Khan, A.S.I. P.W.14, recorded the report Exh.P.A. Prepared the injury sheet, Exh.P.M./2 and inquest report Exh.P.M./3, of the deceased. After despatching the dead body of the deceased to the mortuary under the escort of Karim Bakhsh, F.C. P.W.4, for post-mortem examination, he proceeded to the spot where he prepared the site plan, Exh P.B., at the instance and potation of the P.Ws. From the spot he recovered blood-stained sand and sealed the same into parcel vide memo. Exh.P.E.
After recording statements of the P.Ws., he handed over the remaining investigation of the case to Mumtaz Khan, S.H.O. P.W.9.
' During the course of investigation, Karim Bakhsh F.C. Brought with him from the mortuary a shirt, P.1, Jacket, P.2, and Banyan P.3, all blood-stained belonging to the deceased, and produced those articles to Mumtaz Khan S.H.O. P.W.9, who took the same into possession vide recovery memo.
Exh.P.F. He also recorded the statements of marginal witnesses to the recovery memos. As the appellants were absconding, the Investigating Officer, therefore, applied for issuance of warrants under section 204, Cr.P.C. And also proclamation notices under 'section 87, Cr.P.C. The warrants and notices were entrusted to Abdul Baqi, D.F.C. P.W.6, for execution. He also received the report of Chemical Examiner, Exh.P.G. Thereafter, he submitted challan under section 512, Cr.P.C.
' Muhammad Quresh, S.I. P.W.8, partly investigated the case. On the arrest of Wakeelur Rehman appellant he submitted supplementary challan against him on 22-10-1985. Earlier to this, on 15-10- 1985 Wakeelur Rehman while in custody led him to the spot and pointed out various places. To this effect, he prepared memo. Exh.P.C., as well as sketch, Exh.P.C./1. Appellant Wakeelur Rehman also led him to the house of Waris Khan, his brother, wherefrom he produced a 7 mm rifle bearing No, 2419-MB country-made containing 3 live rounds of the same bore in its magazine along with a copy of the licence. The rifle, Exh.P.A., was sealed into parcel vide memo. Exh.P.D.
' Nazif Khan, S.1. (P.W.2) on 30-6-1987 arrested appellant Murad when he was on Gusht in village Surkh Dheri. He recorded his statement and submitted supplementary challan against him.
' After the completion of the investigation supplementary challans were submitted against the appellants in the manner stated above.
5. On 21-3-1984 at 12 noon Doctor Ibrarullah, Medical Officer Civil Hospital Rustam, P.W.1, conducted post-mortem examination on the dead body of the deceased and found the following injuries on his person on external examination:-
(1) A fire-arm wound of entry in front and to the side of the left lowermost chest. Size 1/2" x 1/4. It is five inches below the left nipple.
(2) A fire-arm wound of exit on the right side of the chest 11" below the right axilla size 1" x 3/4".
' On internal examination the walls of the thorax and the blood vessels in the chest were found injured. Peritoneum, diaphragm, intestines and liver were also injured. The stomach was injured and empty.
' According to the doctor death was due to haemorrhage, shock and injuries to the liver, stomach and intestines etc. Caused by fire-arm. Probable time between injury and death was immediate while between death and post-mortem examination was within two hours.
6. The prosecution in order to prove its case against the appellants, examined 14 witnesses in all including the police officials. The accused-appellants were also examined under section 342, Cr.P.C. And they pleaded not guilty to the charge.
7. After the close of the prosecution evidence and hearing the arguments of the learned counsel for the parties, the learned Additional Sessions Judge, Peshawar recorded conviction and sentences of the accused-appellants as stated in the first para of this judgment.
8. In this case the trial Court has believed the eye-witness account furnished by Jalandar and Said Wali, P.Ws., alongwith recoveries and has discarded the plea of innocence advanced by the accused-appellants. In the opinion of the trial Judge, in fact the deceased party was going to Chargul on the day of occurrence where the accused-appellants waylaid them and both the appellants fired one shot each at the deceased with which he was hit with the fire-shot of Wakeelur Rehman and thereby committed the murder of Ghulam Hussain in furtherance of their common intention.
9. Jalandar P.W.10, Said Wali P.W.11, and Nisar Muhammad are the alleged eye-witnesses to the present incident. Out of them Nisar Muhammad P.W., has, however, been abandoned at the trial being unnecessary witness. It is also established that both the eye-witnesses are closely related to the deceased. Jalandar, P.W.10, is the lodger of the report and has stated therein that on the eventful day he alongwith Nisar Muhammad, his sister's son, Said Wali and Ghulam Hussain, deceased, were going to Chargul from the Mandi of Said Wali to the house of his uncle. At the trial this witness improved his version to the effect that on the day of occurrence he alongwith deceased Ghulam Hussain and P.Ws. Said Wali and Nisar Muhammad was goig to Village Chargul to enquire about the health of his maternal-uncle Saida Gul. He has, however, voluntarily disclosed in his cross-examination that his maternal-uncle Saida Gul had died about 10 years ago and in fact they were going to his house to visit his 'successors' as one Rashid Gul, a son of his maternal- uncle, was ill. He further disclosed that Rashid Gul was sick for the last one month. As against this, Said Wali, P.W.11, has deposed at the trial that about 4/5 days prior to the present occurrence Rashid Gul had fallen ill. Thus, both the P.Ws. Have not given a correct purpose of their visit to Chargul on the day of occurrence and have clearly belied each other on the point of ailment of their uncle or his successor Rashid Gul. Even nobody has highlighted the ailment of Rashid Gul as from what disease he was suffering. It is also an established fact that the journey of the deceased party on the day of occurrence to the house of their uncle at Chargul was not a routine one and secondly the said journey was totally unplanned as according to the eyewitnesses the decision of going to village Chargul was just taken on the day of occurrence. Jalandar, P.W.10, has stated in his statement that:- "We had decided on the very day of the occurrence to visit our maternal-uncle in Chargul."
10. According to the testimony of both the eye-witnesses they had passed the accused-appellants for about 5/6 paces when the appellants fired at Ghulam Hussain deceased who at the relevant time was the last to follow his companions. On hearing the first fire-shot they saw towards the accused-appellants and just after the first shot, second shot was fired. Now, the story put forward by the eyewitnesses that the first shot fired by Murad accused went amiss and the second shot fired by Wakeelur Rehman hit the deceased seems to be a concocted piece of evidence keeping in view their positions at the relevant time. The learned counsel for the appellants have advanced a reasonable argument on this point by stating that when the eye-witnesses had already passed, then it was quite natural for them to have become alert on the report of first fire-shot. The learned counsel for the appellants also argued that in absence of recovery of empties from the spot, the possibility cannot be ruled out that it was the job of one person, whosoever he was. Even if the evidence of the eye-witnesses on this point is taken into consideration then too it would create doubt as admittedly the eye-witnesses have stated in their evidence that immediately after the first shot, the second shot was fired at and thus there should be no occasion for them to say who fired the shot at the deceased and with whose shot the deceased was hit. This fact, c therefore, casts doubt over the veracity of the eye-witnesses attributing specific roles to the accused- appellants in the commission of the offence.
11. Similarly, the medical evidence in the case also does not get corroboration from the testimony of the eye-witnesses. According to the medical evidence the missile travelled from above downwards as the entrance wound, injury No,1, on the person of the deceased was found to be at a higher level than exit wound, injury No,2. From the site plan it is clear that the accused-appellants were not at a higher level at the time of occurrence.
12. Besides this, the eye-witnesses are also at variance about the time of the occurrence. Jalandar P.W.10, has stated in his statement that after about half an hour of the firing, they left the spot for the police station on foot. The occurrence took place at 11-00 a.m. And the report was lodged in the police station at 11-30 a.m. The distance in between the place of occurrence and police station is 2/3 kilometres. The post-mortem examination on the dead body was conducted at 12 noon and according to the medical evidence the probable time between death and post-mortem examination was within 2 hours. Thus, if the occurrence had taken place at 11 a.m. Then it would belie the recording of report at 11-30 a.m. Followed by autopsy conducted on the dead body at 12 noon, as according to the complainant, after about half an hour of the firing they left the spot for the police station and that too on foot. The above state of evidence is sufficient for drawing a conclusion that the occurrence had not taken place at 11 a.m. This conduct of the lodger of the First Information Report creates doubt about the genuineness of his testimony and giving true account of the occurrence.
13. At another place Jalandar, P.W.10, has stated he removed the dead body of Ghulam Hussain to the police station in a cot whereas P.Ws. Nisar Muhammad and Said Wali remained at the spot. He has, however, totally been belied on this point by P.W.13, who has stated in his statement that Said Wali and Jalandar P.Ws. Were present in the police station when he reached to the police station with the dead body.
14. Coming to the question of recovery, it may be mentioned here that the complainant has used only the word Topaks' in the F.I.R. No recovery of spent bullet or empty has been made from the spot. A 7 mm rifle was, however, recovered from the house of Waris Khan, brother of appellant Wakeelur Rehman by Muhammad Quresh, S.I. (P.W.8), but the same rifle is a licensed one in the name of Waris brother of Wakeelur Rehman and the name of the appellant is mentioned in the same as retainer. No Fire-arm Expert's opinion was sought about the weapon of offence due to non-recovery of any empty from the spot and thus it cannot be said with certainty that this was the very rifle which Wakeelur Rehman, appellant, used in the commission of the offence. Similarly, it could also not be brought on record as to whether the said rifle was in working condition at the time of its recovery or not. The recovery of the said rifle is also not proved through any public witness at the trial except by the Investigating Officer. For the aforesaid reasons the testimony of Muhammad Quresh, P.W.8, with regard to the manner of effecting recovery of a 7 mm rifle, alleged to be the crime weapon, is brushed aside from consideration. In absence of recovery of any empty from the spot, the recovery of the rifle in question is of no use to the prosecution.
15. The motive advanced in the F.I.R. Is to the effect that a month prior to the occurrence, the two appellants had demanded Rs,20,000 from Munawar Khan father of the deceased but he refused to advance the said amount. At the trial Munawar Khan, P.W.12, has stated in his examination-in-chief that the accused-appellants had come to his Saw Machine one month prior to the occurrence and had demanded a sum of Rs,20,000 from him. He has further stated that on the day of occurrence the accused-appellants again came to his Saw Machine and repeated their demand but he refused. However, in the cross-examination this witness has disclosed that the accused-appellants did not ask from him to pay the amount as a loan but wanted him to pay the same as a `Gunda Tax'. It is also worth mentioning here that in his police statement this P.W. Has stated that the accused-appellants were demanding a sum of Rs,20,000 from him as loan one month prior to the occurrence. At another place in the cross-examination the witness states as under:- "For the first time when the accused visited me one month prior to the present occurrence, they had visited at evening time and at that time also I was alone. I had not narrated this fact to any other person."
' If this deposition of Munawar Khan P.W.12, is taken into consideration then obviously the eye- witnesses should not have been in the know of the alleged motive. The inconsistency on this score probably would lead us to the conclusion that the F.I.R. Was recorded after consultation and deliberation and the eyewitnesses have concealed some material facts to be brought on record, as a'dmittedly the visit to Chargul on the day of occurrence was not a routine one.
16. After a careful analysis of the entire prosecution evidence we have thus noticed that the motive set up in the case is open to serious doubt; that the story of demanding the money as Gunda Tax was introduced for the first time at the trial; that the prosecution witnesses admit that the visit of the complainant party on the eventful day to village Chargul was not a pre-planned visit and thus obviously the accused-appellants could not be in a position to know that at a particular time and in a particular direction the complainant party would pass from the place of occurrence; that Jalandar P.W.10, and Said Wali, P.W.11, are at variance with each other regarding the time of occurrence; that the firing of effective and ineffective shots is open to serious doubt in view of the statements of P.Ws.10 and 11 as according to them they had passed by the accused-appellants a few paces at the relevant time; that the non-recovery of spent bullet or empty also discredits the prosecution version; that being a case of single effective shot, the possibility cannot be ruled out that it might be the job of one person whosoever he was; and that the medical evidence is inconsistent with the ocular testimony.
17. It is also on record that the spot was surrounded by shops of different persons and two Mandis' but not a single witness from these shops, posing himself to be a disinterested witness, has been produced by the prosecution, which goes a long way to prove that nobody was prepared to support the prosecution story.
18. In the last we are now left only with the question of abscondence of the appellants. The abscondence by itself is not a substantive piece of evidence and can be used as corroboration, but here the prosecution has miserably failed to prove its case against the accused-appellants beyond any shadow of doubt and the more abscondcnce of the accused-appellants can therefore, be not pressed into service.
15. For the aforesaid reasons, we are of the view, that the case of the prosecution is replete with grave doubts, the benefit of which must go to the accused-appellants. We, therefore, accept this appeal, set aside the conviction and sentences of the appellants and acquit them of the charges under section 302/34, P.P.C. They shall be released forthwith if not required in any other case.
' Murder Reference No, 17 of 1988 is answered in the negative and the death sentence is not confirmed.