' NAZIR AHMAD BHATTI, J.---Gul Badshah, appellant has been convicted under section 302, P.P.C. For the murder of Tamrez Khan by the Sessions Judge Mardan on 26-8-1989 and sentenced to undergo imprisonment for life and to pay a fine of Rs, 10,000 or in default whereof to further undergo imprisonment for two years. The learned trial Judge has further directed that half of the fine, if recovered, shall be paid to the legal heirs of the deceased as compensation. By the appeal in hand, Gul Badshah has challenged his conviction and sentence. The complainant, Sarfaraz has also presented revision petition No,60 of 1989 for enhancement of sentence of the appellant. The judgment in the appeal in hand shall also dispose of the aforesaid revision petition.
2. Complainant Sarfaraz took the dead body of his son Tamrez Khan to Police Post Seri Behlol on 1- 12-1984 at 09-15 hours and made a report that on the said day after taking tea he, his brother Hakim Khan and his son Tamrez Khan were basking in the sunshine near the Hujra of Feroz Khan at about 08-30 hours when Tawab Din and his son Gul Badshah arrived there. The appellant asked his son Tamrez Khan as to why the latter had beaten the brother of the former, but Tamrez Khan showed ignorance. Tawab Din ordered his son to do away with Tamrez Khan whereupon the former fired 2/3 pistol shots at the latter who got injured and succumbed to the injuries at the spot. The occurrence had also been seen by Hakim Khan brother of the deceased. The motive for the offence was that 3/4 days prior to the occurrence the deceased had an altercation with the children of the accused party. Murasila about this report was sent to Police Station Takht Bhai where F.I.R. No, 1121 was recorded on the same day. P.W.2 Bashir Muhammad as A.S.I. Arrested the appellant on 4-1- 1986. The appellant and his father co-accused Tawab Din were sent up for trial before the Sessions Judge Mardan where both were charged under sections 302/34 P.P.C. For the murder of Tamrez Khan. Both the accused pleaded not guilty and claimed trial. The State produced 10 witnesses in proof of the prosecution case out of whom P.W.7 Sarfaraz is the complainant and P.W.8 Hakim Khan is the other eyewitness.
3. P.W.1 Dr. Fazal Mahbood Khan performed autopsy on the dead body of Tamrez Khan on the same day at 11-40 hours and found one grazed wound on the chin and one inlet wound on the front 1" left of the medial line and one outlet wound right side back at the level of 7th and 8th ribs. All the injuries were caused by fire-arm. The doctor also found Walls, ribs, cartilages, larynx, trachea, pleurae, right lung and blood vessels injured. The oesophagus was also found injured. The doctor also found undigested food in the stomach, 400 C.C. Urine in the bladder, digested food in the small intestine and faecal matter in the large intestine. According to the opinion of the doctor, death occurred instantaneously and time between death and post-mortem was four to five hours.
The doctor also found the direction of second and third wounds from left to right. He was also of the opinion that both the inlet wounds could he caused by one shot.
4. P.W.7 is the complainant Sarfaraz. He has generally corroborated the contents of the report which he had made in Police Post Seri Behlol. He also stated about the motive. However, he admitted in cross-examination that there is another Hujra to the back of their house which is accessible from their house. He also admitted that Fetoz, owner of the Hujra where the occurrence had taken place, had some blood feud enmity with his relative Radi. P.W.8 Hakim Khan, the other eye-witness of the occurrence, has stated that on the day of occurrence he, his brother Sarfaraz and the deceased were enjoying sunshine near the Hujra of Feroz at about 08-30 hours when accused Tawab Din and Gul Badshah came. The latter asked the deceased as to why he had beaten his younger brother but the deceased showed his ignorance, whereupon accused Tawab Din ordered the appellant to shoot. The Appellant fired 2/3 pistol shots at Tamrez Khan who was hit and died at the spot. This witness is a school teacher and the school time during the days of occurrence was 9 a.m. It was also Saturday on the day the occurrence took place. Although he stated that the occurrence took place at 08-30 hours but the time is not mentioned in his statement under section 161, Cr.P.C. He also admitted that his statement was recorded in the Police Post and thereafter he went to the spot alongwith the complainant and the 1.0.
5. P.W.10 Khalid Nasim, A.S.I. Prepared the injury sheet and inquest report and despatched the dead body for autopsy. He proceeded to the spot and prepared the site plan with the assistance of the P.Ws. He also recovered from the spot two empties of 30 bore freshly discharged and one spent bullet. He arrested accused Tawab Din on 14-4-1985 when his application for confirmation of bail before arrest was rejected. He recorded statement of P.W. Hakim Khan at the spot at 12-30 hours.
The S.H.O., Police Station Takht Bhai reached the spot at 16-45 hours. P.W.3 Amanullah Khan Inspector recorded the F.I.R. On the receipt of Murasila and went to the spot where he verified the investigation conducted by Khalid Nasim, A.S.I. He reached the spot at 14-45 hours.
6. Both the accused denied the commission of the offence in their statements recorded under section 342, Cr.P.C. They also denied the alleged occurrence of quarrel of the children prior to the occurrence. Both the accused did not produce any defence and also declined to give statements on oath. The appellant further explained that he went into hiding out of fear because during those days Martial Law was enforced and of being condemned without due process of law and after the lifting of Martial Law he surrendered to the Police voluntarily.
7. The learned trial Judge convicted and sentenced the appellant and acquitted his co-accused Tawab Din.
8. We have heard learned counsel for the parties at length.
9. The most important point in the case is the time of occurrence. The doctor who performed autopsy on the dead body of Tamrez Khan found undigested food in the stomach, 400 C.C. Of urine in the bladder and faecal matter in the large intestine. This will show that Tamrez Khan was done to death shortly after he had taken morning meals. The presence of urine in the bladder and faecal matter in the large intestine would also indicate that the deceased had not yet eased himself. The doctor performed the autopsy at 11-40 hours and he was of the opinion that death had taken place 4/5 hours earlier. On the contrary the ocular testimony suggests that the death had taken place at about 08-30 hours. The complainant and the other eye-witness P.W.8 Hakim Khan have both stated that they and the deceased were basking in the sun at 08-30 hours and Tamrez Khan was done to death by the appellant. With the presence of such a quantity of urine in the bladder and faecal matter in the large intestine it is highly improbable that the deceased must be comfortably sitting and enjoying sunshine. The presence of undigested food in the stomach also suggests that he had shortly before taken morning meals. The aforesaid circumstances would clearly indicate that the deceased was proceeding to some place to ease himself when the occurrence took place.
The opinion of the doctor would also indicate that the death took place in between 06-45 hours to 07-45 hours. It is also a general custom in the villages that people rise early. It can, therefore, be inferred that the occurrence took place much before the time disclosed by both the eye-witnesses.
Taking into account all the aforesaid circumstances, we have come to the conclusion that the time of occurrence, as disclosed by both the eye-witnesses is not correct. Actually the occurrence took place much earlier than 08-30 hours. A reasonable doubt has been created from the evidence about the actual time of occurrence.
10. In the wake of a doubt having arisen about the actual time of occurrence, the factum of presence of eye-witnesses has assumed great importance. The occurrence took place on the Ist day of December when the winter season is at its peak. It is doubtful that there would be sufficient sunshine at 08-30 hours for the people to enjoy the same. The site plan would also indicate that both the eyewitnesses were sitting by the side of the wall of the mosque at points Nos.4 and 5 which means that they were sitting at a place which was not directly under the sunshine. The wall of the mosque would naturally prevent the sunshine from spreading at that early hours of the morning. Their own house has got a big compound where they could sit in the sunshine. They have also got a Hujra of their own. Moreover they were on inimical terms with Feroz owner of the Hujra and it is doubtful that they would be allegedly sitting there basking in the sun. P.W.8 Hakim Khan is also a teacher and during those days he was employed in Mardan. The distance between Mardan and the village of the complainant party is three miles. The presence of P.W.8 Hakim. Khan at 08-30 hours in the village is doubtful when he has to reach the school at 09-00 hours by travelling a distance of three miles. It was also a Saturday and the school was open. Even otherwise it is improbable that Hakim Khan, would be basking in the sun on that working day when he had to reach the school shortly afterwards. The time of occurrence calculated from the medical evidence would also indicate that the deceased was proceeding to a place to ease himself and at that early hours he would not be accompanied by any other person. It has also come in evidence that the I.O.
Had recorded the statement of P.W.8 Hakim Khan at the spot at 12-30 hours, on the contrary the latter has deposed that he was examined in the Police Post. All the aforesaid circumstances would clearly establish that neither the complainant nor the other eye-witness were present at the spot.
In so far as the latter is concerned his presence at the spot can be completely overruled as the same has not been proved by any evidence. We, therefore, strongly believe that none of the eyewitnesses was present at the spot at the time of occurrence.
11. It appears that the complainant came to know of the occurrence, he went to the spot and found three injuries on the dead body of his son Tamrez Khan. He, therefore, mentioned firing of 2/3 shots by the appellant at his son, whereas according to autopsy there were two inlet wounds and one outlet wound. The doctor also stated that both the inlet wounds could he caused by one shot. Both the inlet wounds appeared on the same direction, it is possible that the bullet first caused a grazed wound on the chin and then pierced the front of the neck. The possibility cannot be ruled out that only one shot was fired at the deceased which caused two inlet and one outlet wounds. The recovery of two empties from the spot most probably led the complainant to mention the firing of 2/3 shots. The complainant being a layman could also not differentiate between an inlet and an outlet wound and having found two empties at the spot and three injuries on the dead body he mentioned in his report the firing of 2/3 shots. As such the circumstantial evidence also does not prove the presence of eye-witnesses at the spot.
12. The motive for the offence is alleged to be an altercation between the children of both the parties a few days before the occurrence. There is no other previous enmity between the parties.
We do not think that such a minor event would be sufficient to provoke the appellant to cause the death of a person.
13. There is only the ascendance of the appellant for more than a year which has been given as a reason for the commission of the offence by him. Ascendance per se does not prove the offence.
However, coupled with other circumstances it may be a factor for proving the guilt of the absconding offender. Since the State has failed to prove the guilt of the appellant by other independent means, the circumstance of ascendance alone is not sufficient to prove the charge against him.
14. The State failed to prove the guilt of the appellant beyond any reasonable doubt. We, therefore, accept this appeal, set aside the conviction and sentence of the appellant and will acquit him of the offence for which he was charged. He shall he set at liberty forthwith if not required in any other case. Since we have accepted the appeal, there is no question of enhancement of sentence. The revision petition is dismissed.