' This is a Criminal Revision Petition filed by Aurangzeb complainant against Muhammad Fazal, Muhammad Sadiq and Muhammaad Yusaf, who were charged for the murder of Mir Dad, on 340- 1984 at Chashka Vela in the limits of Village Chhabrian and were tried and acquitted by the learned Sessions Judge, Abbottabad vide his Judgment dated 10-3-1988. This Court admitted the petition to full hearing against Muhammad Sadiq accused-respondent only while against Muhammad Fazal and Muhammad Yousaf the petition was dismissed in limine on 25-2-1989.
2. Shortly narrated, the facts of the case are that Aurangzeb complainant alongwith his brother-in- law Mir Dad left their village for village Hassainia for `Hashe (grass cutting collectively) of one Banaras of village Hussainia. As soon as they reached the scene of occurrence Muhammad Sadiq accused respondent, Fazal and Muhammad Yusaf acquitted accused, appeared from behind the banna. Fazal and Yusaf raised Lalkara and asked Sadiq to kill Mir Dad as a result of which he fired four shots at Mir Dad with 32 bore pistol with which Mir Dad was hit and fell dead to the ground. The alleged motive for the offence is that Muhammad Sadiq accused-respondent was making efforts that a under construction road should pass through his house but he did not succeed in it and suspected Mir Dad deceased for having his hands in the affairs. Before this an altercation had also taken place between Muhammad Sadiq accused-respondent and Mir Dad deceased. The report was recorded on the spot by Umar Khitab ASI (PW. 7), who happened to be on gasht in the vicinity which was incorporated into FIR No, 233 dated 3-10-1984 P.S. Mirpur. After investigation of the case by the police complete challan was put in Court. The accused-respondents were summoned and charged for the murder of Mir Dad deceased, to which they pleaded not guilty and claimed trial.
3. The prosecution examined 11 PWs in support of its case out of which PW. 9 Aurangzeb and PW. 10 All Akbar are the eye-witnesses. Both the eyewitnesses supported the FIR and charged Muhammad Sadiq for killing the deceased Mir Dad and charged Yusaf and Fazal acquitted accused for shouting lalkara.
4. The accused respondent was examined under section 342, Cr.P.C. Who denied the charges levelled against him and professed innocence. He admitted the recovery of the pistol Ex. P 1 alongwith 10 cartidges Ex. P 3 and magazine Ex.. P 2 and bandolier Ex. P 5 from his possession. He showed his ignorance about the recovery of an empty Ex. P 9 of .32 bore pistol from the spot. When he was questioned about the report of the Fire Arms Expert he replied that "I am the licensee of the pistol and there is no limitation on me to use my valid arms". He denied to appear as his own witness on Oath in rebuttal of the allegations levelled against him within the meaning of section 340(2), Cr.P.C.
5. Dr. Salam Khan (P.W.8) proved the handwriting and signature of Dr. Amjad Hussain, who had performed the post-mortem and proved the contents of the post-mortem report. The post- mortem was conducted by Dr. Amjad Hussain on 3-10-1984 at 2 p.m. On the dead body of the deceased Mir Dad and he on external examination found the following:--
(1) Entrance wound 1-1/2" diameter, 6-1/2" from the umblicus to 8" from nipple, one inch from last rib in the abdomen, left side with charring/blackening. Bullet impacketed on right side abdomen wall.
(2) Superficial wound from left to right side 2" x 1/2" bone deep with charring above the left eye on eye-brow.
(3) Entrance wound 6" from mid line, one inch from hair opening at the left side cavity deep.
(4) Entrance wound 4-1/2" from tip of shoulder on the back slightly laterly on the upper. No exit.
' The said Doctor on internal examination found left side skull fractured, membranes congested, brain congested full of blood, abdomen, walls, entrance wounds on the left side, metalic particle impacketed on right side abdomen, stomach and its contents wounded, stomach containing chura food, small intestines normal, masentary has wound on congested, large intestine, transverse, colan, pierced, live, right lob lower part has entrance and exit wound, kidney wounded, muscles skull fractured. According to the doctor the death was caused due to shock and haemorrhage. The time between injuries and death was instantaneous and the time between death and post-mortem examination was 4 to 6 hours.
6. I have heard the learned counsel for the complainant/petitioner, the learned counsel for Muhammad Sadiq accused-respondent and the learned counsel for the State and have also perused the record.
7. At the very outset I may mention here that the learned trial Court has in para 8 of its judgment come to the conclusion that there is no delay in the instant case and according to him the delay has also not been assailed by the defence. The learned trial Court has stated that the recoveries from the spot are not proved and are doubtful in nature on the ground that the houses of Mian Dad and Fazal Dad are located near the place of occurrence and also the house of Muhammad Iqbal but nobody has been cited as the marginal witness of the recoveries. It is in the statement of PW. 4 Muhammad Ashraf, a marginal witness to the recovery memo (Ex. PW 4/1), that he belongs to village Hussainia and the distance between village Chhabrian and Hussainia might be 6 miles and the scene of occurrence is at a distance of 5 furlongs from village Hussainia. According to this witness he learnt about the occurrence and was coming to the scene of occurrence when he joined the investigation. According to him he is the real brother of one Banaras, who is mentioned in the FIR. Muhammad Ashraf PW. 2 is also the marginal witness to the recovery of pistol Ex. P 1, magazine Ex. P 8, cartridges Ex. P 3 and bandolier Ex. P 5. According to this witness he was already present in village Chhabrian and he joined the police party. He is not in any way related to either party.
8. In these circumstances the learned Sessions Judge was not justified to have disbelieved the above marginal witnesses in whose presence the various articles were recovered on the ground that nobody from the locality was made a witness to these recoveries. The learned Sessions Judge has said nothing about the character of the above witnesses, that they are related to the deceased party or they are in any way interested in the accused party.
9. The next point which was discussed by the learned trial Judge was that the deceased and accused Muhammad Sadiq were shown in the site plan at points A & B and the distance between these points is 6 paces which comes to 15 feet, while according to the medical report the deceased has got charring/blackening marks on wounds Nos. 1 and 2 and according to the medical jurisprudence the charrings are only possible from a distance of 4 to 6 feet. According to the learned Sessions Judge Aurangzeb made improvements in his cross-examination and stated that accused during firing walked towards the deceased. In a case reported in PLD 1974 Supreme Court page 65 it has been held:--- "Contention that charring of entry wounds on person of deceased showing pistol to have been fired from range of 6" whereas witnesses fixed distance between 5 to 7 feet--Held: It is too much to expect from illiterate or semi-literate person to indicate distance with scientific exactitude."
' In this view of the matter it is difficult for witness to give the exact distance between the deceased and the accused because everything happens in split of seconds and it is impossible for common village people to give the exact distance.
10. The next contention is that there is contradiction between medical evidence and the ocular witnesses. According to the medical report the deceased received injuries on his left side while according to PW. 9 Aurangzeb the shots were fired by Muhammad Sadiq at the deceased from right side, therefore, according to the learned Sessions Judge this contradiction goes to the root of the case and makes the case of the prosecution highly doubtful. This finding of the learned Sessions Judge appears to be not correct because when the accused suddenly appeared on the scene of occurrence, first a Lalkara was raised by the acquitted accused Fazal and Yusaf asking Muhammad Sadiq accused-respondent to kill the deceased. Thereafter, Muhammad Sadiq accused respondent fired shots. The deceased was a human being and the natural course for him was that when he learnt the two accused are raising Lalkara and ordering Muhammad Sadiq accused to kill the deceased he would start moving about while changing sides and would not stay there like a statue. For these reasons it is very difficult to say that which side of the deceased was exposed to the assailants because he was not an inanimate stationary object.
11. The learned Sessions Judge has not taken into account the disinterested nature of the ocular witnesses Aurangzeb (PW. 9) and Ali Akbar (PW. 10). No doubt, they are related to the deceased but they have no motive of their own to falsely implicate the accused-respondents in such heinous offence. An interested witness is one who has a motive of his own to falsely implicate the accused.
But in this case PWs Aurangzeb and Ali Akbar will not be called -as interested witnesses as they have no motive against the respondent.
12. The learned Sessions Judge failed to discuss the recovery of pistol which is licensed in the name of Muhammad Sadiq accused-respondent and the recovery of an empty of .32 bore pistol from the spot on the very day of the occurrence and the positive report of the expert which is Ex. P.R. The same was put to Muhammad Sadiq accused respondent in his examination under section 342, Cr.P.C. But he failed to give any satisfactory reply or explanation about it. The learned Sessions Judge has not at all discussed this aspect of the case which in my opinion goes to the root of the case and could be the sole reason for remanding the case for re-trial.
13. According to the learned Sessions Judge there is no delay in lodging of the report and the motive is also proved, as he has stated in paras 8 and 10 of the judgment. There is ocular evidence in this case which has been furnished by PW. 9 Aurangzeb and PW. 10 All Akbar, whose testimony has been corroborated by the recovery of pistol from Muhammad Sadiq accused-respondent which is licensed in his name and the recovery of .32 bore empty which was sent to the Forensic Science Laboratory, Peshawar for examination and the result of the examination is that the empty is fired from licensed pistol of Muhammad Sadiq accused-respondent and the report is Ex. P.R.
14. Consequently the revision petition is accepted, the judgment of the learned Sessions Judge, Abbottabad, dated 10-3-1988 regarding the acquittal of Muhammad Sadiq accused-respondent is set aside and the case is remanded back to him for re-trial of Muhammad Sadiq accused- respondent afresh.
Revision .