' WALI MUHAMMAD KHAN, J.--- Through the instant criminal appeal Raziq Ali and Shaer Ali sons of Naib Ali residents of Pass Kilay, Tehsil Hangu, District Kohat, have called in question their convictions and sentences passed against them by the learned Sessions Judge, Kohat vide his order dated 24- 4-1989, under section 302/307/34, P.P.C. For causing the murder of Liaqat All deceased and ineffectively firing at Khadim All complainant. The complainant Khadim Ali has also filed Criminal Revision No,27 of 1989 for the enhancement of the sentences and also for awarding adequate compensation under section 544-A, Cr.P.C. This single judgment will dispose of both the criminal appeal and the criminal revision.
2. The facts of the case briefly stated are that on 17-10-1987 Khadim Ali complainant along with his nephew Liaqat Ali (deceased) started from their house for attending to the call of nature and when they reached the graveyard known as Sheikh Ali at 19-00 hours, they saw Mohib Ali (absconder) along with Raziq All and Shaer Ali accused/appellants (all brothers inter se) standing armed with Kalashnikovs and on seeing them they started firing at them with which Liaqat All (deceased) was hit and fell down dead on the ground whereas the complainant was saved. The complainant, according to his version in the F.I.R., identified the assailants in the light of bulb which was lit near the scene of occurrence. All the three accused made good their escape. The motive disclosed was that 1-1/2 years prior to the instant tragedy Jaffar Shah and Bahadur Khan had been murdered for which Mohib Ali (absconder) was charged and Mohib Ali was pressurizing the complainant party of that case for effecting a compromise with him but the complainant and the deceased were creating hurdles in the finalization of the same.
3. The complainant Khadim All (P.W.8) reported the matter the same day at 19-30 hours to Jawaid Khan S.H.O. (P.W.9) while on Gasht and he recorded the same in the shape of Murasila Exh.P.A./1 which was later on correctly incorporated in the F.I.R. Exh.P.A. By Abdul Hakim A.S.I. (P.W.5). He prepared the injury sheet and inquest report Exh.P.D. Of the deceased and dispatched the dead body for post-mortem examination under the escort of Abdul Saboor H.C. (P.W.3). Thereafter he rushed to the house of the accused party in order to secure their arrest but they could not be found there and had to return to the spot where he prepared site plan Exh.P.B. Correctly with all it foot notes. From the spot he recovered blood-stained earth, two spent bullets Exh.P.1, three metallic pieces of bullet Exh.P.2, 17 empties Exh.P.3, a charger Exh.P.4 containing three live rounds Exh.P.5 of Klashnikov and took the same into his possession vide memo. Exh.P.C. He recovered a bulb of 100 watts Exh.P.6 fixed in the outer wall of the house of Nazir Ahmad and took the same into possession vide memo. Exh.P.C./1. The recoveries were effected in the presence of the complainant and the marginal witnesses. The clothes of the deceased viz. Shirt Exh. P.7, Shalwar Exh.P.8 and Banyan Exh.P.9 were produced to the Investigating Officer in presence of Sarfaraz (P.W.6) which were taken into possession vide memo. Exh.P.C./2. The blood-stained earth taken into possession from the spot and blood-stained clothes of the deceased were sent to the Chemical Examiner whose report Exh.P.F. Is on the file. Both the appellants were arrested on 25-10-1987. Since Mohib Ali (absconder) was already a proclaimed offender in another case fresh proceedings under sections 204 and 87/88, Cr.P.C. In the instant case were also initiated against him but in spite of the same he did not surrender. On the completion of the investigation, challan under section 302/307/34, P.P.C. Against the appellants and under section 512, Cr.P.C. Against Mohib Ali absconder was submitted to the Court of Illaqa Magistrate, who in his turn sent up the appellants for trial before the Court of Session and proceedings under section 512, Cr.P.C. Against Mohib Ali absconder.
4. Charge-sheet under section 302/307/34, P.P.C. Was framed against both the appellants to which they pleaded not guilty and claimed trial. The prosecution produced Muhammad Sakhawat D.F.C.
(P.W.1), Taimoor Shah A.S.I. (P.W.2), Abdul Saboor F.C. (P.W.3), Dr. Abdul Hameed (P.W.4), Abdul Hakim, A.S.I. (P.W.5), Sarfaraz (P.W.6), Sadiq Ali (P.W.7), Khadim Ali (P.W.8), and Jawaid Khan S.H.O.
(P.W.9) in support of its case and abandoned the remaining P.Ws. Being unnecessary. Both the appellants were examined under section 342, Cr.P.C. And they denied all the allegations brought out against them in the prosecution evidence. They did not like to be examined on oath nor produced any evidence in defence. On the appraisal of the evidence so produced, the learned Sessions Judge, Kohat, vide his impugned judgment found both the appellants guilty of the charge under section 302/307/34, P.P.C. And sentenced them to imprisonment for life and a fine of Rs,5,000 each or in default of payment of fine to suffer rigorous imprisonment for a further period of six months each for the charge of murder of the deceased Liaqat Ali. He further sentenced each one of them to five years' R.I. And to pay a fine of Rs,1,000 each or in default further one month's R.I. Each for attempting at the life of Khadim Ali complainant. Both the sentences were ordered to run concurrently and a fine of Rs,5,000 imposed on the charge of murder, on recovery, was ordered to be paid to the legal heirs of the deceased. Perpetual warrant of arrest was ordered to he issued against Mohib Ali absconder.
5. We have heard learned counsel for the parties and have perused the record of the case with their assistance.
6. Barrister Zahoorul Hag, learned counsel for the appellants argued with vehemence that the occurrence has taken place at a deserted place of graveyard during dark hours unwitnessed by anybody, most probably by a single assailant and that the charge against the appellants was levelled against them on mere suspicion. He submitted that the presence of the sole eye-witness Khadim Ali (P.W.8) at the spot at the relevant time is neither natural nor corroborated by any direct or circumstantial evidence in the case. He dubbed him as a highly interested witness and as such not worthy of credence. Mr. Hadayatullah Khan, learned Assistant Advocate-General appearing for the State, on the other hand, controverted the assertions of the learned counsel for the appellants and submitted that the presence of Khadim Ali (P.W.8) at the relevant time was satisfactorily explained and that there being sufficient light on account of the bulb fixed in the outer wall of the house of Nazir Ahmad, close to the scene of occurrence, and lit at the time of occurrence, the identity of the assailants was not difficult particularly when the parties belong to the same area and were known to each other. He added that there was no direct enmity between the appellants and the deceased party and consequently there was no motive for false charge.
7. We have anxiously considered the learned arguments of the learned counsel appearing for the parties in the light of the evidence, direct and circumstantial available on record. It is an established principle of law that a Court while convicting an accused person for an offence particularly in a case in which capital sentence is provided for, have to be fully convinced that the accused facing trial is the only person responsible for committing the offence and that there is not even the slightest doubt about their false implication. This yardstick in view, we have to scan the evidence to find out whether the prosecution has been able to bring home the charge to the appellants without any shadow of doubt. The instant case mainly hinges on the statement of the solitary witness Khadim Ali complainant (P.W.8). He is admittedly the uncle and father-in-law of Liaqat Ali deceased as well as inimical to Mohib Ali absconder, brother of the appellants, who suspected him for putting hindrance in the negotiation for compromise between him (Mohib Ali absconder) and the heirs and relatives of Jaffar Shah and Bahadur Khan deceased for whose murder he (Mohib Ali absconder) had been charged and declared proclaimed offender. He consequently falls in the category of interested witness and his testimony had to be scrutinised with great care and caution before it could be made the basis for the conviction of the appellants.
His presence at the spot at the relevant time does not readily appeal to commonsense. It is not understandable as to how both the complainant and the deceased felt the need to go together to attend to the call of nature and at the time when it had already become dark. Even if it was so in normal course the complainant who was an elderly person and in a position to command respect from the deceased, was to go ahead followed by the deceased and not vice versa as alleged by the complainant in his statement in Court. This version appears to have been advanced for the reason that in case he was to go ahead of the deceased, he would have been the target of the assailant, moreso, when the absconder had been inculcating more grudge against him than the deceased and also in an effort to explain his avoiding receipt of any injury from the indiscriminate firing by three persons with Klashnikovs from a close range. It is stated by the complainant himself that he identified the accused in the light of a bulb lit on the house of one Gulzar and Nazir Ahmad situated close to the scene of occurrence. No bulb was either shown lit at the time of occurrence on the wall of the house of Gulzar towards the scene of occurrence nor any such bulb was taken into possession by the Investigating Officer at the time of his spot inspection. However, the Investigating Officer did recover a bulb of 100 watt from point 'B' outer gate of the house of Nazir Ahmad which was allegedly lit at that time. The distance between the spot and point 'B' is shown as 48 paces, and the identification of the assailant in the light shed from such a distance could not be free from doubt, keeping in view the old age of the complainant. We, therefore, doubt the presence of the complainant Khadim Ali (P.W.8) at the spot at the time of occurrence and are also of the considered opinion that the identification of the assailant in the peculiar circumstances of the case was not possible.
8. Needless to emphasize that in cases of like nature based on a solitary interested witness, the prosecution is required to produce independent corroborative evidence, direct or circumstantial, before reliance can be placed on the deposition of such solitary witness. In the case in hand we do not find any independent corroboration of unimpeachable character. The circumstantial evidence does not support the prosecution version rather it is in direct conflict with the same. According to Khadim All complainant (P.W.8) after 5/6 minutes of the occurrence a Head Constable accompanied by the constables came to the spot to whom he narrated the occurrence and he directed him (complainant) to arrange for taking the dead body of the deceased to the police station for lodging the report there. This portion of his statement is also supported by Abdul Saboor H.C. (P.W.3) in his cross-examination wherein he admitted to have reached the spot on hearing the report of fire shots earlier than the arrival of Jawaid S.H.O. Who reached the spot after about half an hour of his reaching the spot. Curiously enough this witness who is equally a responsible officer of the police neither recorded the report of the complainant nor mentioned the names of the assailants firstly disclosed to him by the complainant at his arrival on the spot. From the spot 17 empties of Kalashnikovs were recovered and sealed into parcel but no effort was made to secure an opinion from the Arms Expert as to whether they were fired from one or different weapons to exclude the possibility of the occurrence being result of shots fired by a single person. It was elicited in the statement of Dr. Abdul Hameed (P.W.4) under cross-examination that he did not detect any faecal matter in the descending colon i,e, the large intestine and there is no reason why this portion of his deposition be not accepted as he particularly examined the descending colon and found it injured. This portion of his statement is material for determining whether the deceased had in fact felt the necessity to attend to the call of nature or not. Ordinarily it may not be a material circumstance going against the prosecution but in the peculiar circumstances of the case where no direct independent evidence is available, a minor circumstance casting doubt on the veracity of the sole eye-witness becomes relevant. No independent witnesses were produced to prove the recovery from the spot made after more than an hour of the occurrence when large number of people had already been attracted to the spot. All the injuries on the person of the deceased were on the back and the inference can safely be drawn that the assailant, one or more than one, had taken precaution to hide their identity in the graveyard and fired at the deceased when he had already crossed them.
9. The learned counsel for the appellants cited the authority of the Supreme Court in case Bagh Ali and 4 others v. The State reported as PLD 1973 SC 321 and the relevant portion thereof is reproduced hereunder for ready reference:-- "The appraisement of the evidence of eye-witnesses has to he based upon a full consideration and evaluation of all the circumstances appearing in the case where there is a total absence of physical circumstances to connect the accused persons with the crime, and there is a background of enmity. In such a situation, the ocular evidence must, in order to carry conviction on 'a capital charge, come from an unimpeachable source. If such a source is not available, then it must be supported by some strong circumstance which would enable the Court to overcome the inherent doubt which such evidence must necessarily create."
10. The above dictum of the Supreme Court applies with full force to the facts and circumstnaccs of the present case and respectfully following the cited judgment we accept the instant appeal, set aside the convictions and sentences passed against Raiiq Ali and Shaer Ali appellants and acquit them. We have already ordered their immediate release through a short order. The connected Criminal Revision No,27 of 1989 is accordingly dismissed.