' MUHAMMAD ISHAQ KHAN, J.--Rafiuddin alias Paddi, son of Ghanam Din, aged 21/22 years, resident of Wali Khan Banda, accused-appellant, faced trial along with his father Ghanam Din (since acquitted) the Court of Sessions Judge, Karak on a charge u/s 302/34, P.P.C. The learned trial Judge found the accused-appellant guilty of the offence, convicted and sentenced him to undergo life imprisonment and to pay a fine of Rs,15,000 or in default thereof to suffer further 2 years' R.I. The fine, if realized, was ordered to be paid to the legal heirs of the deceased as compensation u/s 544-A, Cr.P.C. The benefit of Section 382-B, Cr.P.C. Was also extended to the accused-appellant. By the same judgment, the learned Sessions Judge, however, acquitted the co-accused of the appellant, namely, Ghanam Din.
2. The convict has filed CrAppeal No,53/88 against his conviction and sentences.
3. The State has filed an appeal bearing No,151/88 against the judgment of the learned Sessions Judge, Karak, dated 20-2-1988 whereby Ghanam Din accused-respondent was acquitted.
4. There is also a Cr.Revision No,23/88, filed by Gul Manan complainant-petitioner for the enhancement of the sentence of Rafiuddin convict-appellant.
' As both the appeals as well as Cr.Revision have been filed against the same judgment dated 20- 2-1988 of the learned Sessions Judge, Karak, therefore, we propose to dispose them of by this single judgment in Cr Appeal No,53/88.
5. The prosecution case as disclosed in the First Information Report (Ex.PA) is that on 8-4-1987 at 8.45 a.m., Gul Manan son of Gui Badshah, brought the dead body of Naimatullah son of Zar Badshah in a Datsun Pick Up No,3307/BUA with the help of his co-villagers to PS Latamber and lodged report to the effect that on the eventful day he and his son Naqeebur Rehman alongwith his nephew Aziz Khan son of Hassan Khanan and Naimatullah son of Zar Badshah (decd) were busy in reaping the wheat crop situated in the field at `Ster Band' when at 8 a.m. Ghanam Din and Rafiuddin, their co-villagers, came there duly armed with topaks. Rafiuddin accused called out Naimatullah to come near. On this, Naimatullah left harvesting and proceeded towards them and on reaching near Rafiuddin, the latter fired at him with which he was hit and fell down. Thereafter Ghanam Din also followed suit and fired at Naimatullah and with this fire-shot to the deceased was hit and expired at the spot. The accused after the occurrence decamped towards their house.
' Motive for the offence was disclosed to be `sharam mastoorat'. According to the complainant the occurrence was witnessed besides him, by Naqeebur Rehman and Aziz Khan as well.
6. The report of Tila Muhammad, complainant, was recorded by ASI Ghulam Dawood Khan (PW5), who after preparing the injury-sheet, Ex.PM/2 and inquest report, Ex.PM/3, of the deceased, despatched the dead body to the mortuary for post-mortem examination at Civil Hospital, Karak under the escort of Atlas Khan, FC No,178 (PW 3) where on the identification of Samandar Khan (PW4), Doctor Muhammad Khurshid (PW 1) conducted the post-mortem examination on the dead body of Naimatullah deceased. Ghulam Dawood, ASI after sending the dead body to the mortuary left for the spot but Gul Raees Khan, SI (PW9) met him at the gate of the Police Station, and therefore, the chain of investigation was handed over to him.
7. Dr.Muhammad Khurshid (PW 1) conducted the post-mortem examination on the dead body of the deceased on 8-4-1987 and found the following injuries on external examination:-
(1) An entry wound of 1/2" below right pinna, 1/6" in diameter, circular.
(2) An exit wound on right cheek of lacerated nature about 1" in length and 1/4" in width and depth 1/2".
(3) An entry wound on right side of nostril almost circular adjacent to nostril 1/2" in diameter.
(4) No exit wound of the same was found.
(5) Entry wound lacerated in nature of 1" in length, 1/2" in width, 1/4" from right corner of mouth horizontally and below the lower lip.
(6) No exit wound of No,5 was found.
(7) An entry wound on right side chin, circular 1/2" in diameter fracturing the mandible bone, three teeth were on the floor of the mouth.
(8) No exit wound of No,7 was found.
(9) An entry wound of 1/4" in diameter, circular on the border of right sterno cleidomastoid muscle, 1-1/2" from right sterno-clavicular joint.
(10) Exit wound of No,9, pellet found palpable beneath skin, on the right side of the neck lower part, excised pellet handed over to police.
(11) An entry wound of 1/4" in diameter, circular in shape on top of the shoulder about 1" from upper border of right scapula.
(12) An exit wound of No,11 lacerated is contused wound of about 3" in length, 1-1/2" in width, coming to right angle of mandible, injuring skin in the path.
(13) An entry wound of 1/4" in diameter circular shape 1/2" from the medial border of the scapula.
(14) No exit wound of wound No,13.
(15) Two corresponding holes on the shirt, related to entry wound, mentioned already in Sr.No,11 and 13.
' On internal examination the doctor found the right lungs of the deceased injured.
' In the opinion of the doctor the deceased died of injuries caused to the right lungs which resulted in profuse hemorrhage and shock. Probable time between injury and death was 15 to 30 minutes but the doctor voluntarily stated that the death could be instantaneous. The time between death and post-mortem examination was 2-3 houRs,
8. Gul Raees Khan, PW 9, (I.0) has stated in his statement that on his arrival at the spot at 9.25 a.m., he first went to the house of the accused but they were not available and on search of the house, nothing incriminating was recovered therefrom. After some time Gul Raees Khan, PW, came to know that Rafiuddin accused has taken shelter in the house of one Naurang. The Investigating Officer, accordingly went there and effected the arrest of Rafiuddin. Thereafter, the I.O. Again came to the spot and prepared the site plan at the instance and potation of PWs Fazal Rehman and Gul Manan. The S.H.O. Collected two empties of .12 bore (P1), 7 card--board disc (P2), one wad (P3), some branches of wheat (P4), and blood-stained earth and took them into possession per memo.
Ex.PC. The I.O. Was yet busy in the investigation of the case in hand when in the meantime FC Atlas Khan (PW4) brought from the mortuary blood-stained shirt (P5) and banyan (P6) having cut marks, along with a phial (P7) containing a pellet of .12 bore, extracted from the dead body of the deceased and produced the same to the I.O. Who took the same into possession and sealed them into a parcel in presence of Fazal Rehman (PW2), per memo.
' Ex.PC/1. On 13-4-1987, Ghanam Din (acquitted accused) voluntarily appeared before Gul Raees Khan (PW9) who in his turn effected his arrest.
' After completion of the investigation in the manner stated above the LO submitted a complete challan against the accused in the Court of the Ilaqa Magistrate who in his turn sent the case to the Court of Sessions Judge, Karak for trial.
9. To prove its case, the prosecution examined 9 witnesses in all against the accused. After the close of the prosecution evidence the accused were also examined under section 342, Cr.P.C. Their statements were also recorded u/s 340, Cr.P.C. In which they denied the charges and pleaded innocence.
10. We have heard the learned counsel for the parties and have also carefully gone through the record of the case.
10-A. In this case the prosecution has produced 3 alleged eye- witnesses of the occurrence, namely, Aziz Khan, Naqeebur Rehman and Gul Manan. Gul Manan is the lodger of the First Information Report, Ex.PA. All the three eye-witnesses are related to the deceased. In the FIR the complainant has attributed one shot each to both the accused Ghanam Din and Rafiuddin coupled with the fact that both the shots proved effective. The contents of this story remained the same till recording of the statements of the eye-witnesses u/s 164, Cr.P.C. Because before the police as well as the Court of Ilaqa Magistrate, the eye-witnesses have reiterated the contents of the F.I.R. However, at the trial the eye-witnesses have clearly changed their version to the effect that though Ghanam Din accused had also fired at the deceased but they do not know as to whether he was hit or not. Aziz Khan, PW6, has stated in his statement at the trial that on 8-4-1987 at sunrise time he alongwith Gul Manan complainant, Naqeebur Rehman and deceased Naimatullah went to the fields known as `Ster Band' for cutting wheat crop in the fields of Gul Manan. He has further stated that after some time Rafiuddin alias Paddi and his father Ghanam Din came duly armed with topics (shotguns) and Rafiuddin called Naimatullah deceased and on such calling Naimatullah left the harvesting and started towards the accused. This witness has also disclosed that when Naimatullah reached near Rafiuddin he suddenly fired at him with which he was hit and fell down. Then Ghanam Din fired at Naimatullah but he does not know whether he was hit or not.
The remaining two eye-witnesses have also taken the same stand. Though, the eyewitnesses have made departure from the original story but the learned trial Judge has still come to the conclusion that the deceased was hit with two fire-shots which were fired by Rafiuddin, appellant. However, it is not the case of the prosecution. In this context the site-plan. Ex.PB, prepared by the I.O. Is of much importance. In the site-plan points 4, 5, 6 and 7 are those places where at the relevant time the eye-witnesses alongwith the deceased Naimatullah were reaping the wheat crop. Points 2 and 3 denote the presence of Rafiuddin and Ghanam Din, accused respectively. From point No,2, the accused-appellant Rafiuddin shouted at the deceased to come near them. Point No,1 is the place at which the deceased stood in front of accused Rafiuddin after coming from point No,7. The distance between Rafiuddin accused present at point No,2 and Ghanam Din accused at point No,3 is 26 paces. The distance between point No,1 and 2 is 9 paces and between points No,1 and 3 is 35 paces. Hence at the time of the alleged firing Ghanam Din accused was at a distance of 35 paces from the deceased. A glance at the location of points in the site-plan would reveal that in case of a shotgun fire from point No,3, the persons standing at points 1 and 2 both would receive injuries on their persons because of the dispersion of the pellets, but it is also not the case here.
11. According to the medical evidence, injury No,12 is the exit of entry wound No,11, caused from back to right travelling towards the face side of the deceased. The deceased Naimatullah received in all 14 injuries on his person in which 7 injuries are entry wounds, five entry wounds on the face and two on the back, within an area of 6 to 8 inches. Keeping in view the ocular version of the eye-witnesses it can be said with certainty that it is not compatible with the medical evidence as the eye- witnesses have made an attempt by making departure and improvements to bring it in line with the medical evidence vis-a-vis the number of shots, otherwise these injuries could not have been sustained by the deceased if he was coming towards the appellant at point No,2 because as many as two entrance wounds have been caused at the back which means that the missiles have travelled from the back side.
12. Keeping in view the fact that the deceased received injuries within an area of 6 to 8 inches, the possibility can also not be ruled out that it was the result of one fire-shot because an LG or SG cartridge of .12 bore shotgun could cause 7 inlet wounds on the person of the deceased, having 7 to 9 pellets in a cartridge, because it is highly improbable that two persons chose the same posterior of body to shoot the deceased from left to right. We also get no explanation from the whole evidence on record as to how the deceased received injuries from the back when the accused- appellant fired at him from the front. With regard to the alleged fire shot of Ghanam Din we have already observed that from point No,3 Ghanam Din accused was not in a position to shoot the deceased alone, because according to the site-plan the son of Ghanam Din was also in the firing range and in case of firing from a distance of 25/35 paces the convict-appellant Rafiuddin must have also received injuries on his person who was standing at a distance of only 9 paces from dlr., deceased at the time of occurrence. From this, it can be safely concluded that it was an un witnessed occurrence and the eye-witnesses have not seen the incident with their own eyes and have concocted the alleged story against both the accused.
13.The circumstantial evidence of the case is also not in conformity with the ocular evidence of the occurrence. According to the prosecution story, the eyewitnesses along with the deceased were busy in reaping the wheat crop in the fields known as `Ster Band' and before the arrival of the accused at the spot they had already cut some wheat. But in the site-plan, neither the wheat crop has been shown in the fields nor the bundles of the cut wheat. The eye-witnesses have also deposed that they were reaping the wheat crop with sickles, but the I.O. Has recovered no sickle from the spot. Thus, there is no evidence to show that the complainant party was busy in cutting the wheat crop or it was the season of cutting of the wheat crop. Admittedly, the harvest season of the wheat crop starts much later than the first week of April. , This further gets support from the statement of Fazlur Rehman (PW2), who has signed the recovery memo. Ex.PC as a marginal witness, vide which the I.O. Had recovered from the spot bloodstained earth, 2 empties of .12 bore, 7 cardboards, one wad and some branches of wheat. First of all this Fazlur Rehman is not the resident of Wali Khan Banda and secondly he is the relative of Gul Manan complainant, which casts serious doubt over the genuineness of the recovery memo. By deposing in his statement at the trial to the effect that:-- "I was standing at a distance of 10/15 paces away from the local police when they showed me the recovery of the 2 empties and in that regard I signed the recovery memo."
' Thus, the recovery in question was not made in his presence and he was only informed by the police that they had recovered 2 empties and he then signed the memo.
14. Further the I.O. Sent the two empties for safe custody but did not obtain the report of the expert for the reason that the weapon of offence had not been recovered. Thus, there is no expert opinion about the fact as to whether the two empties were fired from one weapon or more.
15. On the side of motive too the prosecution has miserably failed to discharge the burden of proving the same against the accused. No doubt, the F prosecution is not bound to allege motive in every case, but we are well aware of the negative effects to be borne by the prosecution when motive in a case is set up but the burden of proving the same is not discharged. In this case no plausible explanation was given for the words `sharam mastoorat' as alleged in the F.I.R. The eye- witnesses have though later on stated at the trial that after killing the deceased the accused- appellant Rafiuddin stated to the complainant that the deceased has been killed for the reason that he was after his sister-in-law. This simple definition of `sharam mastoorat' would not lead us to the conclusion that the prosecution has established the motive against the accused. Admittedly, both the accused were not admitting the responsibility of the murder, thus it was for the prosecution to prove at least this much that with which sister-in-law the deceased was having liaison. Hence, an ambiguous plea of `sharam'mastoorae as taken in the FIR and the unsatisfactory explanation for the same at the trial would definitely shatter the case of the prosecution, in toto.
16. For the reasons stated above we are of the view that the prosecution has miserably failed to bring home the charge against the accused-appellant Rafiuddin beyond any shadow of reasonable doubt, the benefit of which must go to the accused-appellant. In the result, we accept this appeal, set aside the conviction and sentences of Rafiuddin, appellant, and acquit him of the charge. He shall be set at liberty forthwith if not required in any other case.
17. The revision petition for the enhancement of the sentence of Rafiuddin appellant, in view of his acquittal automatically fails and is hereby dismissed.
18. The State Appeal against the acquittal of accused-respondent Ghanam Din is also dismissed for the reasons stated in this judgment. He is present in Court on bail and is discharged from the obligation of his bail bonds.