' SAAD SAOOD JAN, J.--The appellant, Mushtaq Alimad, aged about 18 years, was convicted by the Sessions Judge at Bannu on two counts under section 302 of the Pakistan Penal Code for causing the death of Nadir Khan and Amir Sardar and under each count he was sentenced to death and directed to pay a fine of Rs,2,000. On appeal and reference the High Court upheld his convictions and confirmed the sentences of death. The appellant has come in appeal by leave of this Court.
2. The appellant was closely related to Nadir Khan as his mother was the real sister of Nadir Khan's father, Malik Bahadur Khan. Apart from that, his father and Malik Bahadur Khan were carrying on joint business. Amir Sardar deceased was an employee of Malik Bahadur Khan and was serving him as an accountant in his fruit shop in Qayum Market at Ghalla Mandi Bannu.
3. The occurrence was stated to have taken place on 31-5-1980 at about 10-30 a.m. In the fruit shop of Malik Bahadur Khan. It was alleged by the prosecution that at the relevant time Nadir Khan and Amir Sardar were sitting at the shop. The appellant came there with an automatic pistol (Mauser) and opened fire on Nadir Khan. As a result Nadir Khan was badly hurt and two of the ricochetting bullets hit Amir Sardar also. After the firing the appellant went to the nearby shop of Nawab Nawaz Khan (P.W.8) and threw his pistol there. 1 le then disappeared from the scene of occurrence. The occurrence was witnessed by Musharaf Khan alias Malangi (P.W.13) and Bahadur Zaman Khan (P.W.14).
4. Immediately after the occurrence Nadir Khan and Amir Sardar were removed to the District Headquarter Hospital at Bannu. A.S.-1. Muhammad Nasir of Police Station Saddar was already present at the hospital in connection with some other business. He recorded the statement of Amir Sardar and Nadir Khan. He sent the statement of Amir Sardar which was recorded at 11-30 a.m. To Police Station, City Bannu where on its basis a FIR. Was registered at 12-45 p.m. Nadir Khan died on the very day of occurrence while Amir Sardar succumbed to his injuries about a week later.
5. The case was investigated by S.H.O Zarif Khan of Police Station City Bannu. On the very day of occurrence he arrested the appellant. He collected 6 empty cartridges and 3 bullets from the fruit shop of Malik Bahadur Khan. He also took into possession the automatic pistol which the appellant had allegedly thrown in the shop of Nawab Nawaz Khan. According to the fire-arms expert, the empty cartridges and the bullets had been fired from the pistol collected from the shop of Nawab Nawaz Khan.
6. The post-mortem examination of Nadir Khan and Amir Sardar Khan was carried out by Dr. Muhammad Bashir (P.W.7) who was posted as Medical Officer in the District Headquarter Hospital at Bannu. He found 6 inlet wounds, 3 exit wounds and one grazing wound in the chest, hypochondrium, right shoulder and left leg of Nadir Khan. He also found one inlet and one grazing wound in the chest and umblicus region of Amir Sardar. His testimony left no doubt that both Nadir Khan and Amir Sardar had died as a result of fire-arm injuries.
7. At the trial, the appellant pleaded not guilty to the charges against him. He denied that he was responsible for the death of Nadir Khan and Amir Sardar and alleged that it was a case of blind murders and that he had been falsely involved in the case on account of some land dispute between his mother and Malik Bahadur Khan. Apart from producing certain documents, he did not lead any evidence in his defence.
8. At the trial the case of the prosecution rested on the dying declarations made by Nadir Khan and Amir Sardar before A.S.I. Muhammad Nazir and the ocular testimony provided by Musharaf Khan alias Malangi (P.W.13) and Bahadur Zaman Khan (P.W.14). Nawab Nawaz Khan (P.W.8) was also examined by the prosecution to prove that immediately after the occurrence, the appellant had thrown his pistol in his shop but he turned hostile.
9. The learned trial Court as well as the High Court found the dying declarations as well as the ocular testimony reliable enough to support the convictions of the appellant on the charges under section 302 of the Pakistan Penal Code. Accordingly, they convicted him of the said offences.
10. Leave to appeal was granted to the appellant on the ground that there were certain circumstances appearing in the evidence led by the prosecution which necessitated a more extensive examination of the record.
11. As already mentioned, the dying declarations of Amir Sardar and Nadir Khan were recorded by A.S.I. Muhammad Nazir (P.W. 15). The statement made by Amir Sardar is comparatively more detailed than the one given by Nadu Khan and it includes the names of the two eye-witnesses. In their statements both Amir Sardar and Nadir Khan named the appellant as the person responsible for the injuries suffered by them. As these statements were recorded within a few hours of the occurrence which took place in broad daylight in a market and only one person was accused of the firing, they should have ordinarily strong probative value. However, there are certain circumstances appearing in evidence which tend to cast doubt on their genuineness. According to the eye-witness account the firing took place inside the shop and the assailant opened fire while standing in front of the door thereof. The injuries suffered by both the deceased must have bled immediately on their being hit. In this context reference may be made to the statement of Dr. Muhammad Bashir (PW7) who deposed that both deceased had suffered from external as well as internal bleeding. Yet, the investigating officer did not find a single drop of blood at the alleged place of occurrence. This peculiar feature of the case raises a strong possibility that the two deceased were attacked at a place other than the fruit shop of Nadir Khan's father.
12. There is yet another circumstance that needs to be noticed. According to the two deceased, their assailant was armed with only one weapon. However, from the dimensions of the injuries found on the body of Nadir Khan, it appears that not one but at least two weapons were used. This position was conceded by Dr.Muhammad Bashir in cross-examination. He stated: "Injury No,1 is of a dimension of 1/3" x 1/3" while the remaining injuries are of the sizes 1/4" x 1/4" on the person of Nadir Khan deceased. Therefore, I can say that they may be caused with two different weapons."
' However, in re-examination, he went back on his earlier admission but the doubt created by his earlier admission still lingers on.
13. It was not seriously disputed by the State that the appellant had no motive to harm Nadir Khan and Amir Sardar. Nadir Khan was his first cousin and engaged to his sister. His father and Nadir Khan's father were partners in a joint business. There was thus no reason why the appellant should have taken upon himself to murder his cousin and future brother-in-law in cold blood. Malik Bahadur Khan (PW10) and his brother-in-law Muhammad Daraz Khan alias Tor Malik (PW6) did refer in their statements to an altercation which took place between the appellant and Nadir Khan two days prior to the occurrence but apparently this story was not believed by the High Court which went on to observe: "It is a case of no motive or rather it has been kept back by the prosecution."
' On the other hand, the appellant alleged that Malik Bahadur Khan had good reasons to be annoyed with him for a few years prior to the occurrence Malik Bahadur Khan's father Mir Zali Khan had made a gift of 200 kanals of land in favour of his mother. Malik Bahadur Khan was upset over this gift and had attempted to tamper with the mutation attested to evidence the gift.
14. The appellant produced a number of documents showing that Nadir Khan was a person of abnoxious disposition and had a number of enemies only too willing to get even with him. Thus, between November, 1974 and January, 1980 he was cited as an accused person in as many as seven F.I.Rs, lodged by different persons and registered in respect of offences under sections 307, 168, 367, 342 and 377 of the Pakistan Penal Code and Section 4 of the Prohibition (Enforcement of Hadd) Order, 1979. Only about a month before the occurrence, his own father Malik Bahadur Khan lodged a report against him at Police Station City, Bannu. The report makes an interesting reading and runs as follows:- {{URDU TEXT}} ' Thus, it is a case where the person accused of killing Nadir Khan had no reason to hurt him whereas a large number of other persons including his own father were seeking protection against his nefarious activities. Taking all these circumstances into consideration, we would be reluctant to rely upon the dying declarations in the absence of independent corroboration.
15. The second prop of the prosecution case was the ocular testimony furnished by Musharaf Khan alias Malangi (P.W.13) and Bahadur Zaman Khan (P.W.14). They stated at the trial that on the day of occurrence they had gone to the shop of Malik Bahadur Khan to collect some fruit. The occurrence took place while they were sitting there. According to them, the appellant arrived at the shop with a pistol and immediately started firing at Nadir Khan, hitting both Nadir Khan and Amir Sardar. Now, Musharaf Khan was admittedly the driver of Malik Bahadur Khan whereas Bahadur Zaman was his bodyguard. Although Bahadur Zaman did not admit that he was a body guard of Malik Bahadur Khan but in this regard he was contradicted by Musharaf Khan (P.W.13) when he stated that Bahadur Zaman used to carry his topak with Malik Bahadur Khan. It was the case of the prosecution that on the day of occurrence Malik Bahadur Khan had gone to the office of a Superintendent of Police. Ordinarily, both Bahadur Zaman Khan and Musharaf Khan should have accompanied him to the said office. Neither of these two witnesses claimed that he ordinarily worked at the shop of Malik Bahadur Khan. Thus, quite clearly they were chance witnesses. It is somewhat surprising that even though the occurrence took place in a market at a time when it must be humming with activity, the prosecution in support of its case was able to produce only chance witnesses who were employees of Malik Bahadur Khan.
16. As stated above Malik Bahadur Khan was present in the office of the Superintendent of Police when the occurrence took place. Malik Bahadur Khan (P.W.10) stated that at the relevant time he was sitting outside the office when the Superintendent of Police called him in and informed him that his son and Amir Sardar had been fired at effectively by 'someone' and that the injured persons had been removed to the hospital. Now this is another peculiar feature of the case. As is apparent from the statement of Malik Bahadur Khan (P.W.10), the Superintendent of Police knew about the names of the victims but he was unaware of the identity of the assailant, even though according to the prosecution the occurrence took place in a market in the presence of witnesses and the assailant was the nephew and the son of the business partner of Malik Bahadur Khan. It is therefore difficult to avoid the impression that nobody knew who had fired at the two deceased.
This would cut across the case of the prosecution that the occurrence was seen by two witnesses and the persons hurt knew about the identity of the assailant. In the circumstances, the ocular testimony can hardly be treated as of a quality upon which implicit reliance can be placed.
17. For the reasons stated above, we are of the view that the evidence produced by the prosecution against the appellant does not remove all reasonable doubts with regard to his guilt and is certainly not sufficient to support his conviction on a capital charge. We would accordingly accept this appeal, set aside his convictions and sentences and acquit him of the charges against him. He shall be set at liberty forthwith if not required in any other case.