' WALT MUHAMMAD KHAN, J.--Shafiullah Khan and Gul Faraz Khan alias Palay Khan, convicts- appellants herein, have challenged the order, dated 31-3-1988, passed by the learned Additional Sessions Judge, Bannu, whereby he convicted both of them under section 302/34, P.P.C. And sentenced each one of them to life imprisonment and a fine of Rs,10,000 or in default to suffer two years' further R.I., half of the fine was to go as compensation to the legal heirs of the deceased, for causing the death of Bakht Mir deceased by firing at him on 2910-1984 at 11-40 hours on the kactha road leading to Babar Khunjari at a distance of 1-1/2 miles from the police station, Kakki. The complainant Ali Khan (P.W.9) has also filed criminal revision No,6 of 1988 for the enhancement of sentence of the appellants. Through this single judgment, we propose to dispose of both the appeal and revision.
2. The background of the case briefly stated is that Gul Muhammad Khan (P.W.8) was on gasht near the Chowk of Falak Sher (in this part of the country the place which is used as a hujra is called a Chowk) when he came across the dead body of the deceased Bakht Mir lying on the ground and Ali Khan, his son, aged about 23/24 years, made a report to him at 12-15 hours on 29-10-1984 at the spot. According to him, he along with his father Bakht Mir deceased, his brother Afsar Zaman (P.W.10) and one Abdul Latif son of Zar Mir along with other people of the village were busy in repairing the culvert on the said path when a red colour Datsun came from the direction of Khunjari Khas and was stopped at some distance wherefrom Gul Faraz alias Palay Khan, accused- appellant came towards them and asked Bakht Mir deceased to accompany him as he had some business with him whereupon the deceased started going along with him and the complainant (PW.9) along with his brother Afsar Zaman (P.W.10) also started following them. When the deceased reached near the Datsun, Shafiullah Khan, convict-appellant alighted from the front seat of the same Datsun and fired a shot with a pistol at the deceased with which he was hit and fell down on the ground. Simultaneously, Gul Faraz Khan alias Palay Khan drew out a .12 bore pistol from his trouser string and fired at the deceased where after both the convict-appellants got into the said Datsun and made good their escape. Motive for the offence is that Zardad Khan, father of Shafiullah Khan accused was murdered for which Bakht Mir deceased was charged, vide F.I.R.
No,103, dated 29-12-1964.
3. Noor Muhammad Khan, A.S.I. (P.W.8) recorded the report vide Exh.P.A./1, read over the same to the complainant and secured his thumb-impression, after he admitted it correct, which was later on correctly incorporated in the F.I.R. Exh.PA, by Muhammad Ayaz Khan (P.W.2). He then prepared the injury sheet Exh.P.E. And inquest report Thdi.P.D. Of the deceased and sent the dead body for post- mortem examination under the escort of Amir Khatim Khan (P.W.4) where on the identification of Shafi Zaman (P.W.3), autopsy on the dead body of the deceased Bakht Mir was conducted by Dr. Muhammad Nafis-ud-Din (P.W.12). The Investigating Officer then prepared the site plan Exh.P.C. At the potation of the complainant and his brother Afsar Zaman (P.W.10). In the meantime, Nasrullah Khan, S.H.O. (P.W.11) on receipt of information about the incident while on gasht arrived at the scene and took over investigation from the A.S.I. Noor Muhammad Khan. He verified the part of investigation already carried out by the said A.S.I. And then started recording evidence of the witnesses connected with the crime. Mir Khatim Khan Constable (P.W.4) brought shirt Exh.P.1, Jacket Exh.P.2, bloodstained, belonging to the deceased, having cut marks and handed over the same to the S.H.O. Nasrullah Khan who took them into possession vide memo. Exh.P.G., in the presence of Noor Muhammad Khan, A.S.I. (P.W.8).
4. The accused-appellants were not available therefore, warrants under section 204, Cr.P.C.
(Exh.S.W.1/1 and Exh.S.W.1/2) respectively were obtained against them from the Illaqa Magistrate and entrusted to Dilawar Khan F.C. (P.W.13) for execution. He made a thorough search for them in the surrounding area but could not apprehend them and on his satisfaction that the accused had absconded to tribal territory, after commission of the offence, he returned the warrants unnerved, with a report duly supported by the thumb impressions and signatures of the elders of the Illaqa, to the effect that the accused-appellants had gone into hiding. In consequence, proclamations under section 87, Cr.P.C. (Exh. S.W.1/4 and Exh. S.W.1/3) were obtained against th appellants and entrusted to the same constable for proceeding according to law. He pasted a copy thereof on the notice board of the Court, the second copy on the outer door of the house of the accused and the third one returned to the Court with a compliance report. The accused-appellant Shafiullah obtained pre-arrest bail from the Court of Sessions Judge, Bannu on 3-12-1984 and when the same was not confirmed, he was physically arrested by Lal Badshah (P.W.1) on 10-4-1985 in the instant case. Gul Faraz Khan alias Palay Khan, accused-appellant, was arrested on 8-2-1985 at 21-30 hours during a raid. During the course of investigation, Noor Muhammad A.S.I. Took into possession the Datsun bearing No,3482-BUA Exh.P.4 and ignition key of the Pick-up Exh.P.5 and registration with permit of the said Datsun Exh.P.6 in the presence of Mir Qad Ayaz (P.W.6) vide memo. Exh.P.K., as the same was alleged to have been used in the commission of the offence. Mehmood Khan son of Bakht Jamal (since acquitted) was arrested under section 109, P.P.C. For helping the accused- appellants in the commission of the instant tragedy. On completion of the investigation, Inayat Ali Shah (P.W.7) who was then S.H.O. Of P.S. Kakki submitted complete challan in the case to the Court of Illaqa Magistrate who, in his turn, sent up the accused-appellants along with their co-accused Mehmood Khan to stand their trial before the Court of Session.
5. Charge-sheet was framed against the accused-appellants and their co-accused Mehmood Khan to which they pleaded not guilty and claimed trial: The prosecution produced as many as thirteen witnesses out of whom P.W.9 and P.W.10 namely Ali Khan complainant and Afsar Zaman eye-witnesses have supplied the ocular version of the occurrence while the rest are more or less, of a formal nature, connected with the investigation of the case and reference to their deposition has already been made in the earlier part of this judgment and will also be referred to when discussing the merits of the case. The accused-appellants and their co-accused were examined under section 342, Cr.P.C. And they denied the allegations made against them in the prosecution evidence and put to them specifically in the form of questions and answers, Shafiullah Khan, accused-appellant in reply to the question regarding his ascendance raised the plea of alibi and exhibited several documents in support thereof. Gul Faraz Khan alias Palay Khan appellant while explaining his ascendance stated that a few days prior to the occurrence he had gone to Karachi and after spending some time there he returned to his native village at Bannu where he came to know of the charge against him and voluntarily surrendered to the local polite. -Roth of them did not wish to be examined on oath nor they produced any evidence in defence. On the appraisal of evidence so produced before him, the learned Additional Sessions Judge, Bannu, vide his impugned judgment, dated 31-3-1988 convicted and sentenced both the accused-appellants herein as detailed above and acquitted their co-accused Mehmood Khan from the charge of abetment.
6. We have heard Mr. Sanaullah Khan Gandapur assisted by Mr. Muhammad Karim Anjum Qasuria, learned counsel for the appellants, Mr. Muhammad Iqbal Khan Kundi, learned counsel for the State and Pir Muhammad Feroz Shah, learned counsel for the complainant and have perused the record of the case with their assistance.
7. The learned counsel for the appellants submitted that there is no independent ocular evidence in the case in spite of the fact that the occurrence took place near the place where many people were working in linga' to repair the culvert; that there is unexplained delay in lodging the F.1.R.; that there is no circumstantial evidence to corroborate the version of the interested prosecution witnesses; that the F.I.R. Was drawn after preliminary investigation by the police and that the same cannot, therefore, be taken into consideration in corroboration of the prosecution story and lastly, that the occurrence was not witnessed by anybody and the charge against the appellants was made on suspicion on account of previous blood feud.
8. The learned State counsel and the counsel appearing for the complainant, on the -contrary submitted that the presence of the eye-witnesses namely, Ali Khan and Afsar Zaman was natural in the circumstances of the case; that as per the time mentioned in the F.I.R. There is absolutely no delay in lodging of the report; that the occurrence took place in broad daylight; that the complainant party had no enmity with anybody else; that they could not be expected to falsely implicate the appellants and allow the real culprits go scot free; that there is no inconsistency between the medical evidence and the ocular account of the occurrence and lastly that the ascendance of the accused-appellants for sufficiently long time without any plausible explanation go a long way to establish their guilt.
9. We have anxiously considered the arguments of the learned counsel on either side. Mir Khatim Khan F.C. (P.W.4) as per the statement of Noor Muhammad A.S.I. (P.W.8) was deputed to accompany the dead body of the deceased from the spot to the mortuary to keep watch till autopsy, lest some one may interfere with it. Apparently this witness was in the company of Noor Muhammad Khan, A.S.I. Since prior to the lodging of the F.I.R. This prosecution witness admitted in the cross-examination that on information of the present occurrence, he along with other Constables and Noor Muhammad Khan, A.S.I. Proceeded towards the direction of the spot and that on reaching the Chowk of one Falak Sher of village Khojari Shama Kiwi, he saw the dead body of the deceased lying on a path and that the first thing which the A.S.I. Did was the examination of the dead body, preparation of the injury sheet and inquest report, site plan and thereafter recorded the report at the instance of a person who came to the spot from the village. He added that he took the dead body to the Hospital at about 10.00 A.M. He gets corroboration from the statement of Noor Muhammad Khan, A.S.I. (P.W.8) inasmu ch as he also shows the time of their departure between 8 and 9 A.M., however without conceding that they left the police station on the information of the instant occurrence but had started on gasht Shafi Zaman (P.W.3) who had identified the dead body at the time of postmortem examination also disclosed the time of removal of the dead body from the spot at about 10 A.M. According to the opinion of the doctor Muhammad Nafis-ud-Din (P.W.12), the time between injuries and death was 3 to 6 hours and on cross-examination he explained that the minimum time elapsed between injuries and death was 3 hours and the maximum 6 hours, meaning thereby that the time of occurrence could be between 8-30 and 11-30 hours, This glaring admission in the prosecution evidence leads to the conclusion that the occurrence did not take place at the time recorded in the F.I.R. But at a time much prior thereto, rather prior to 10-00 A.M. The same day. Consequently there is not only abnormal delay in the lodging of the F.I.R. But the same having been recorded after preliminary investigation, loses its probative and intrinsic value.
10. Admittedly both the eye-witnesses, namely, Ali Khan and Afsar Zaman, are the sons of the deceased. Besides their relationship with the deceased, they are equally inimial to the accused- appellant Shafiullah Khan on account of their father, Bakht Mir deceased having been charged for the murder of Zardad Khan, father of Shafiullah Khan accused in the year 1964. They, being highly interested witnesses, their deposition against the appellants herein, have to be considered with great care and caution and their testimony cannot legally be made the basis of conviction of the appellants unless corroborated by other material evidence. It is the case of the prosecution that prior to the instant tragedy the deceased, the two P.Ws. And one Abdul Latif along with other persons, 20/25 in number, were present on the culvert, busy in repairing it in linga' when Gul Faraz Khan alias Palay Khan appellant took away the deceased on the pretext that he had some business with him. No doubt in this part of the country no one volunteers to appear as a witness in a case entailing capital sentence but, all the same, the law, for the safe dispensation of criminal justice insists upon the independent corroboration of interested witnesses. None of the persons present at linga' was produced at least to depose about the presence of the P.Ws.9 and 10 at the relevant time along with their father and the factum of Palay Khan coming there and taking away the deceased. No blood was found on the spot to conclusively determine that the occurrence took place at the spot shown in the site plan. Gut Faraz Khan alias Palay Khan accused-appellant was attributed a shot with a `Charraydar Pistol' (.12 bore pistol) but according to the opinion of the Doctor, no pellet injury was found at the person of the deceased. No empty, cardboard was recovered from the spot nor any pellet marks detected on the wall close to the scene of the occurrence. The Doctor found a lacerated wound on the face of the deceased, caused with blunt means but the prosecution miserably failed to explain the same. A vain attempt was made by the learned prosecution counsel that this injury might have been received by the deceased as a result of fall on the hard surface of the road after the receipt of firearm injury, fired by Shafiullah Khan convict-appellant, but the same cannot be accepted, firstly; because according to the site plan the road was katcha, secondly, no stone having blood marks was taken into possession from the spot and, thirdly, if the deceased had fallen with his face downward, then blood would have oozed out from both the wounds, but non-recovery of the blood from the spot belies this assertion. The persons present at linga' were having spades and yums but the Investigating Officer did not care to take them into possession. He has not even given a note in the site plan that the culvert was under repair/construction. Moreover, the spot is surrounded by residential area and also the hujra of Falak Sher where some people must have been present but no one from amongst them was produced to strengthen the prosecution case. Consequently the interested ocular testimony is D not corroborated by any independent, plausible and reliable oral or circumstantial evidence.
11. Otherwise too, the statements of the eye-witnesses namely Ali Khan (P.W.9) and Afsar Zaman (P.W.10) neither inspire confidence nor acceptable to a prudent mind. P.W.9 Ali Khan admitted that after the occurrence he left his father on the spot and went towards the linga' where he spent about 45 minutes before the arrival of the police. It is not understandable as to why he should leave the dead body of his father lying on the road-side unattended and go to the linga' for staying there till the police is attracted to the spot. In the ordinary course of nature he along with his brother were supposed to place the dead body on a cot and take it to the police station which was not very far away, with the help of the other co-villagers already present in the linga'. He deposed that he directed his brother Afsar Zaman to bring a cot from village Shama Khel situated at a distance of about 30 paces from the spot and to the same effect is the statement of his brother Afsar Zaman (P.W.10). However, he added that he had not yet brought a cot when a Thanedar came and directed them to place the dead body on a cot and take it to the Chowk of Falak Sher which they did. Noor Muhammad Khan, A.S.I. Contradicts them, inasmuch as, according to him, when he reached the spot he found the dead body lying on the roadside alone, unattended by anybody and that he noticed persons, running hither and thither and that on inquiry from them he was informed of the occurrence and that he arranged the taking of the dead body to the Chowk of Falak Sher. It is clearly admitted by him that a son of the deceased came to the Chowk of Falak Sher and made the report Exh.P.A./1 in the shape of murasila. He did not mention the presence of Afsar Zaman at the spot nor he has recorded his statement under section 161, Cr.P.C. The presence of the deceased as well as his son at the `tinga' is not natural. The theory with regard to Gul Faraz Khan alias Palay Khan accused's asking the deceased to accompany him and the two P.Ws.
Following him equally does not stand to reason, because the deceased and the P.Ws. Could easily tell him to say whatever he wanted to say there and then. None of the witnesses explained as to from which direction the Datsun came, who was driving it and whether there were any other persons sitting in the front seat or not. It is also not clear in which direction the Datsun was facing at the time of occurrence. In case it was facing eastward then the places shown in the site plan where the Datsun was and the appellants allegedly fired, do not reconcile. The S.H.O. Arrived at the scene of occurrence at 2-30 P.M. And thereafter recorded the statement of Afsar Zaman P.W. Under section 161, Cr.P.C. From this a presumption can safely be drawn that Afsar Zaman P.W. Was not present on the spot at the time when Noor Muhammad Khan, A.S.I. Arrived there. The presence of the eye-witnesses on the spot at the time of occurrence is, therefore, not free from doubt.
12. We are thus left with the ascendance of one accused-appellants after the occurrence. There is no cavil with the proposition that the abscondence is a corroborative piece of evidence but it is equally well established by now that mere abscondence cannot be considered sufficient for the conviction of the accused. In this respect, reliance can be placed on 1986 SCM R 823. As discussed above, the prosecution has miserably failed to bring home the charge to the guilt of the accused- appellants beyond reasonable doubt and mere failure of the accused-appellants to surrender themselves to the police at the earliest possible time cannot per se point to their guilt for the instant tragedy.
13. For the foregoing reasons, we are not convinced about the guilt of the accused-appellants for the murder of Bakht Mir deceased. Consequently we accept this appeal, set aside the conviction and sentence passed upon them by the learned Additional Sessions Judge, Bannu vide order dated 31-3-1988 and acquit both the appellants of the charges leveled against them. It is ordered that they he set at liberty forthwith, if not required to be detained in any other case.
' Resultantly the criminal revision filed for enhancement of sentence of the convicts-appellants fails and is accordingly dismissed.