' MUHAMMAD ISHAQ KHAN, J.--- Khushrang Zeb, accused-appellant, stood his trial in the Court of Additional Sessions Judge-II, Swabi along with his real brother Amir Zeb and uterine brother Jehanzeb on a charge under section 302/34, P.P.C. For the murder of Bakht Shed Khan, deceased.
The earned trial Judge vide his judgment, dated 22-6-1989 found the accused-appellant guilty of the charge and accordingly convicting him under section 302, P.P.C. Sentenced him to imprisonment for life with a fine of Rs,25,000. In default of payment of fine the accused-appellant would also suffer imprisonment for 2 ears. The fine, if realised, was ordered to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. He, however, acquitted the other two co-accused of the appellant vide judgment, dated 22-6-1989.
' The convict-appellant feeling dissatisfied with the above judgment of the earned trial Judge has filed the instant appeal from jail for setting aside his onviction and sentence.
2. The prosecution case as disclosed in the First Information Report, xh.PA., lodged by Zarshed Khan, complainant, on 11-9-1986 at 15-10 hours in olice Station Kalu Khan is to the effect that on the eventful day he alongwith his eceased brother Bakht Shed Khan and Abdullah Khan (P.W.8) were busy rrigating their maize crop at Saidu Dher within the limits of village Sheikh Jana ehsil and District Swabi. Their turn of water was from 12 noon upto 2-15 p.m. t about 2 p.m., Khushrangzeb, Amir Zeb, sons of Rahim Dad Khan and ehanzeb son of Karim Dad, their co-villagers, came there.
Khushrangzeb was rmed with a Tamacha'. They wanted the deceased party to give them the turn f water for irrigating their lands but as the turn of the complainant party was pto 2-15 p.m. Therefore, they refused to give the turn of water to the accused saying that 15 minutes still remained in their due timing. On this, an altercation started between the parties. Amir Zeb, accused, caught hold of Bakht Shed Khan, deceased, and Jehanzeb, accused, ordered Khushrangzeb, the convict- appellant, to fire. Khushrangzeb, accordingly fired 3 shots from his Tamacha' at the deceased with which he was hit, fell to the ground and expired on the spot. According to the lodger of the report, besides him the occurrence was also witnessed by Abdullah Khan, P.W.
3. Muhammad Quresh Khan, S.I. (P.W.9) after recording the report of the complainant prepared the injury sheet Exh.P.C., and inquest report, Exh.P.C./1, of the deceased and despatched the dead body to the mortuary for post-mortem examination under the escort of F.C. Jehangir Khan, P.W.3. The Investigating Officer, thereafter proceeded to the spot.
4. Dr. Muhammad Wali, P.W.1, performed the post-mortem examination on the dead body of Bakht Shed Khan, deceased on 11-9-1986 at 4-30 p.m and found the following on external examination:-- - (1) A fire-arm entrance wound on upper part of the left side of the chest 11/2 c.m. In diameter without charring.
' On internal examination, the thorax walls, ribs, cartilages and pleurae of the deceased were found damaged at the side of injury of the wound. Left lung and the descending aorta of the deceased were also damaged.
' In the opinion of the doctor the death of the deceased occurred due to fire-arm injury on the chest resulting in bleeding and shock. The doctor in his statement at the trial admitted that he recovered no bullet or pellet from the dead body.
5. On arrival at the spot, the Investigating Officer prepared the site plan, Exh.P.B., at the instance and potation of the eye-witnesses. He also took into possession the blood-stained shirt, P.1, and Banyan, P.2, belonging to the deceased having cut marks produced to him by Jehangir Khan, F.C. Which he had brought from the mortuary. The Investigating Officer sealed the same into parcel vide recovery memo. Exh.P.D. In presence of the marginal witnesses. The Investigating Officer then recorded the statements of the P.Ws. On the spot. The Investigating Officer also searched the accused for arrest but they were not available in their house. He, therefore, obtained warrants under section 204, Cr.P.C. Against them followed by proclamation notices under section 87, Cr.P.C. The Investigating Officer also sent the blood-stained clothes of the deceased to the Chemical Examiner for report and the opinion of the Expert in this regard is Exh.P.K. On the file. Thereafter, this P.W. Handed over the remaining investigation of the case to Amir Bahadur Khan, Inspector (P.W.2), who in his turn completed the rest of the investigation and submitted challan in the Court under section 512, Cr.P.C. Against the accused. On the arrest of the accused, he also submitted supplementary challan against them in the Court.
6. The prosecution in order to prove its case against the accused examined as many as 9 witesses including Zarshed Khan, P.W.7, and Abdullah Khan, P.W.8, the alleged eye-witnesses of the occurrence. The accused when examined at the trial denied the allegations and pleaded innocence. They also produced Sherin Khan, Canal patwari, as D.W.1, to prove the fact that at the relevant time the turn of water was not of the complainant party.
7. The learned trial Judge vide his impugned judgment acquitted the co-accused of the appellant and convicted and sentenced him to imprisonment for life under section 302, P.P.C. With a fine of Rs,25,000 as stated in the earlier part of this judgment.
8. We have heard the learned A.A.-G. For the State and with his assistance we have also carefully gone through the evidence on file.
9. In this case, according to the prosecution version the deceased along with his brother Zarshed Khan (P.W.7) and Abdullah Khan (P.W.8), their maternal-uncle, were irrigating the lands in the vicinity of the spot when at about 2 p.m. The accused-appellant alongwith his brothers Amir Zeb and Jehanzeb (since acquitted) came there and demanded from them the turn of water. However, Bakht Shed, deceased, told the accused that they had still fifteen minutes in their turn of water, on which an altercation ensued between them. Amirzeb, acquitted accused, caught hold of the deceased whereas Jehanzeb, acquitted accused, ordered his brother Khushrang Zeb, the convict- appellant, who was duly armed with a `Tamacha' to shoot the deceased. The convict-appellant then fired 3 shots at Bakht Shed Khan, deceased.
10. Perusal of the record indicates that the defence side has created much doubt in the case of the prosecution and the learned trial Judge in his judgment has also admitted the same to some extent but has deprived the convict-appellant from its benefit for the reason that in a broad daylight the convict-appellant committed the murder of the deceased in presence of the two eye- witnesses.
11. First of all if the defence version about the venue of occurrence is taken into consideration it would establish through the statement of D.W.1 Sherin Khan, Canal Patwari, that at the relevant time, there was no turn of water of the complainant party. The said D.W. When appeared at the trial produced Exhs.DA. And D.B. Whereunder the plea of the complainant party was shattered with regard to their stand that at the relevant time they were irrigating the fields on the basis of their own turn of water. From the said documents it is evident that the turn of water at the relevant time was of a different party. In this context a look at the evidence produced by the prosecution against the accused would reveal that no recovery whatsoever has been made from the spot. For example no spent bullet or blood-stained earth or the spade with which the deceased was allegedly irrigating the fields at the relevant time were recovered by the Investigating Officer during his spot inspection.
12. Taking into consideration the above facts in a straightforward manner, obviously one would come to the conclusion that the venue of occurrence was not the one as has been shown by the eye-witnesses. However, the learned trial Judge on the basis of the eye-witness account did not give proper consideration to the aforesaid facts for the reason that the eye-witness account was inspiring confidence and the complainant party was having no ill-feeling against the accused- party. We deem it necessary here to point out those material doubts available in the evidence of the prosecution, the benefit of which has not been extended in favour of the convict-appellant.
Abdullah Khan, P.W.8, the maternal-uncle of the deceased and complainant has not given plausible explanation about his presence on the spot at the relevant time. According to him, he is a school teacher in village Turlandi which is at a distance of 6/7 kilometres from village Sheikh Jana.
As the father of the deceased was abroad in Saudi Arabia, therefore, he was supposed to supervise their cultivation. True that being the maternal-uncle of the deceased the said P.W. Would have been asked by the father of the deceased to help him in cultivation, but it is unbelievable that P.W.
Abdullah Khan started helping the deceased in his cultivation even during his duty hours and that too at a time when there was no need of him to be present with the deceased for irrigating the fields. During the days of occurrence his duty hours lasted upto 2 p.m.
13. From the evidence it is evident that with one spade three persons had gone to the fields for irrigation and that too at a time when the necessity of helpers for the purpose of irrigation was not required by the deceased at day time. It has also been admitted by the eye-witnesses that they were present at the spot without doing any work.
14. According to the eye-witnesses, Amir Zeb accused, caught hold of the deceased whereas Jehanzeb ordered the present appellant Khushrangzeb to fire at the deceased. It is also in the evidence of both the eye-witnesses that the accused-appellant fired 3 shots at the deceased. The medical evidence, however, shows only one entrance wound on the body of the deceased with no exit. The conclusion of the trial Judge that all the three bullets might have entered through the same inlet being fired at from a close range is highly unimaginable in the circumstances of the case. If it is presumed that all the three missiles entered the body of the deceased at one place, then at least an exit wound on the body of the deceased should have been found, which is not the case here. Even otherwise the presumption of missing the target by two bullets would create doubt because Amirzeb, the acquitted-accused, had caught hold of the deceased at the time of firing by Khushrangzeb, convict-appellant. The strong presumption of receiving fire-arm injuries by the brother of the convict-appellant too in such like situation cannot be ruled out from consideration. It is thus quite unnatural that one brother caught hold of the deceased, the second ordered the third one to fire at the deceased in spite of the fact that their own brother was also in the firing range at the relevant time. Further, both the eye-witnesses did not receive any injury on their person nor they showed any resistance in the situation explained by them.
15. It is also on the record that at the time of preparing the injury sheet of the deceased, blood was still oozing from the wound. According to the eyewitnesses account as the deceased fell into the water channel after the receipt of injuries, therefore, the blood got mixed with the flowing water of the stream. True that the deceased would have fallen into the channel at the relevant time after receipt of fire-arm injuries but the blood should have been available on his shirt at the time of preparing his injury sheet and even it should have been found on the clothes of the eye-witnesses who allegedly removed the deceased from the water channel and placed him on the cot. But at the same time the eye-witnesses have stated in their deposition that they do not know who had taken out the deceased from the drain, which also does not appeal to common sense that in .Uch like situation the eye-witnesses would not have attended their close relation, he deceased.
16. is no independent corroboration of the occurrence except the erosion of the two alleged eye- witnesses which is, however, highly doubtful in the substances explained above. The circumstantial evidence in the case is also of o help to the prosecution in the instant case. From the evidence available on record it can be safely inferred that the deceased met his death at a time when body, except the assailant, whosoever he may be, was present. The medical evidence does not support the case of the prosecution and similar is the case with regard to the recoveries made from the spot.
17. The learned trial Judge also legally erred when he acquitted co-accused of the appellant and convicted him on the same set of evidence already discarded B against his co-accused.
18. Therefore, we have no option but to accept this appeal, set aside the conviction and sentences of the appellant and acquit him of the charge. He shall C be set at liberty forthwith if not required in any other case.