' ABDUR REHMAN KHAN, J.--- Accused-respondents were tried under section 302/148/149, P.P.C. For the murders of Raja Khaqan and Raja Mubarak Ahmad and were acquitted through the impugned judgment. This appeal has been filed by State to challenge the legality and soundness of this judgment.
2. Abdul Jabbar reported the incident to the police on 21-3-1978 at 1-30 a.m. And alleged therein that he was present in the village at evening time and heard some fire shots and row and when he reached the spot he found Allah Ditta and Maqsood sitting by the side of the dead bodies of the two deceased. On enquiry he was informed by them that yesterday in the evening at about 5-30 p.m. The two deceased had gone to the house of Muhammad Sadiq P.W. To enquire about his health. When they came from that house and covered some distance, the absconding accused Syed Hussain Shah, Akhtar Hussain Shah and Firdoos Shah alongwith the three accused- respondents who had waylaid them started firing at them and as a result the said two deceased were injured and expired on the spot. Muhammad Sadiq, Allah Ditta, Maqsood and Anwar were mentioned as having witnessed the occurrence. Suit for produce and ejectment in respect of the land owned by the accused alongwith some others was described as motive for the crime.
2. In order to determine the involvement or otherwise of the accused- respondents in the crime it would be relevant to give a brief resume of the evidence examined by the prosecution at the trial.
P.W.1. Dr. Taj Muhammad Malik was then the Medical Officer who performed post-mortem examination on the dead body of Raja Mubarak Ahmad and on external examination detected the following injuries:--
(1) A contused wound 2-1/2.' x 1-1/2" x 1/2" on the middle of skull transverse in direction.
(2) A fire-arm enterance wound 1-1/2" xr1 /2" each four in number in area about 1-1/4" at right choulder near neck. Cavity deep. Charring at coat present.
(3) An entrance wound of fire-arm 1-1/4" in circle 1-1/4" below and behind the injury No,2. Cavity deep. Charring at coat present.
(4) An entrance wound of fire-arm 1" in circle at right side chest 3/4" lateral to nipple. Cavity deep.
Charring at coat present.
(5) A-grazing mark of fire-arm injury 1-1/4" x 1/2" at middle of sternum.
(6) An exit wound of fire-arm 3 in number 1/2" x 1/2" each in area 2-1/2" x 1/2" below the left nipple.
(7) A bruise in area 3" x 2" at right side chest at the level of 7th and 8th in anterior axillary line. Three pellets removed from this.
(8) A bruise at left side chest 1-1/2" below and lateral to left nipple. Two pellets removed from the bruise.
' On internal examination the doctor also found chest wall, right 1st, 2nd, 7th, 8th and left side 5th and 6th ribs injured. Sternum, cartilage injured transversely by injury No,4. Pleurae, right left lung, pericardium, heart and blood vessels injured. Peritoneum, osophagus, pharynx, diaphragm, stomach, small intestines, large intestines, liver were found injured. Stomach was empty. Similarly, after examining the dead body of Raja Khagan the said witness discerned the following Wounds:-
(1) A fire-arm entrance wound 2" x 1-1/2" at back left side near mid-line near upper angle of left scapula and cavity deep.
(2) An entrance wound of fire-arm 1/2" x 1/2:' x muscle deep at front of right shoulder joint laterally.
(3) A fire-arm entrance wound 1/2" x 1/2" x 1" below the lateral third of right clavicle and muscle deep.
(4) A fire-arm entrance wound 1/2" x 1/2" x cavity deep at right renal area at back 2" above the right iliac chest.
(5) A fire-arm exit wound 1/2" x 3/4" at level of 5th right rib 1-1/4" below and lateral to right M.Nipple.
(6) A fire-arm exit wound 1/2" x 3/4" at right side in mid-axillary line at the level of 5th rib. One pellet palpable at back of right shoulder opposite injury No,3 at mid-right shoulder back was removed.
One pellet from opposite injury No,4 hack of arm was removed.
(7) A bruised area left side abdomen upper and laterally 4-1/2" x 3" three pellets were palpable and were removed from the bruised area.
'On internal examination the doctor also found 2nd, 3rd thorax vertebras at transverse process injured. Second and third ribs at left side posteriorly injured. Chest wall injured, second, third ribs posteriorly and fifth rib anteriorly injured at left side. Left side pleurae, lung, pericardium, heart and blood vessels injured. Walls left side bruised, injured at back right side. Peritoneum, diaphragm and stomach injured. Stomach was empty.
3. P.W.7 is Abdul Jabbar, the first informant who while giving the relation said that the deceased were not related to him, that Sajjad Hussain Shah, Akhtar Hussain Shah absconders are the real brothers of Abid Hussain and Ibrar Hussain accused, Firdous absconder is their cousin while Yasrab accused is son of their cousin. About the main incident he deposed that on the day of occurrence at Digar time while in house he heard shots from the spot and weeping and cries of the womenfolk from the houses of the two deceased as their houses were at high level. When he went there he saw Allah Ditta, Sadiq and Maqsood sitting by the side of the bodies of the two deceased Raja Khaqan and Raja Mubarak Ahmad. On enquiry from P.W. Allah Ditta about the incident he was informed that the accused and the absconders while sitting on either side of the path fired at the deceased when they came out of the house of P.W. Sadiq and that all of them fired with shotguns.
The same motive for the offence as given in the F.I.R. Was repeated. This P.W. Also witnessed recovery memo. Exh.P.W.7/1 through which small of the butt was taken into possession from the spot and memo. Exh.P.W.7/2 and Exh.P.W.7/3 whereby blood-stained pebbles and earth were picked up from the places where the deceased were lying. Three empties were recovered from the spot out of which two were taken into possession and sealed through memo. Exh.P.W.7/4 and one vide memo. Exh.P.W.7/5. Similarly, the witness also proved other recovery memos. From P.W.7/8 to 7/11 relating to recoveries of empty shells from various places in the site plan. P.W.8 Allah Ditta posed to be an eye-witness and deposed as such. According to his statement he and P.W. Sadiq live in one and the same house and the latter was sitting there by his side at Digarwela when the two deceased alongwith Anwar and Maqsood came there and enquired about his health. After staying there for a while they left the house accompanied by the witness and P.W.9 Sadiq to see them off and when the deceased went a few paces he noticed Sajjad absconder standing armed with a shotgun near the wall of the mosque who fired a shot at Raja Khaqan which hit him. Then from behind the boulder across the Nallah, Abid absconder and Yasrab accused fired two shots which hit the said deceased. Akhtar accused fired first shot at Mubarak which was followed by one shot each of Firdoos absconder and Ibrar Hussain accused. These shots hit him and he fell on the ground. Ibrar accused then came closer to Mubarak and gave him a blow on his head with the butt of his gun. Thereafter all of them while firing in the air decamped from the spot towards their Dhok and even on reaching the Dhok they persisted in firing which could be heard. The next eye-witness Sadiq appeared as P.W.9 and stated-that the two deceased alongwith Anwar and Maqsood had come to his house to enquire about his health and after staying for a while left the house. This witness also gave the same account of firing of each accused as was given by P.W.8 Allah Dina and, therefore, that narration of incident should not be reproduced. P.W.10 Habibur Rehman is a brother of deceased and he explained the motive in detail which is practically the same as given in the F.I.R. Similarly, Abdul Karim P.W.1 a co-vendee of the land with the deceased also described the same reason for the nurders as given in the F.I.R. The Investigating Officer Abdur Rchman appeared as P.W.10 and furnished various details of his investigation.
4. The accused in their statements under section 342, Cr.P.C. Expressed complete ignorance of the occurrence as well as of the motive.
5. The learned trial Judge while extending benefit of doubt to the accused-respondents recorded their acquittal mainly on the following grounds:--
(a) Inordinate and excessive delay in reporting the incident to the police as according to its finding the F.I.R. Could have been lodged at the most at 6-30 p.m. But was made at 1-30 a.m. In the night. It is to be noted that the murders occurred at 5-30 p.m. At a place 15 miles away from the police station. From the analysis of the evidence of Muhammad Saeed P.W.2, Abdul Jabbar P.W.7 and that of Abdur Rehman P.W.12 the learned Court inferred that the first informant had gone in jeep to make a report and this distance could have been covered within 30 minutes.
(b) It appears unnatural and unreasonable that P.W.9 Sadiq the eye-witness would have come out of the house alongwith the deceased to see them off when he was indisposed and the deceased had come to enquire about his health.
(c) Accused Abid Hussain and Yasrab are alleged to have fired from behind the boulders, therefore, their identity in that position was not possible.
(d) Improvement in ocular testimony over the F.I.R. In order to bring the ocular evidence parallel to medical evidence as for instance there was no mention of Abid Hussain having caused injuries to Raja Mubarak with Butt of the Topak in the F.I.R. But this fact was introduced by the eyewitnesses in their statements.
(e) Similarly, in statements in Court distance of firing range was reduced from that given in the site plan so as to make it in accord with the medical evidence.
(f) As empties were recovered in the cattleshed of the accused, therefore, an improvement was made in statements in Court over the initial story wherein firing in the cattleshed of the accused was also added.
(g) According to post-mortem report the injuries on Mubarak Ahmad bore charring marks and according to the doctor's statement the injuries on the body of Raja Khaqan had also charring but the distance between the assailants and the victims disclosed in the site plan is beyond the charring marks.
(h) Although the witnesses appear to be disinterested but merely on that score it is not obligatory to accept their evidence as their evidence when properly weighed in the light of other materials on record does not appear to be confidence inspiring.
(i) Motive alone cannot be made basis for conviction as it is double-edged weapon and can also be a cause for false implication.
6. The learned Assistant Advocate-General while arguing in support of the appeal submitted that the delay in filing first information report in the circumstances of the case cannot be described as fatal and that ocular account having been given by disinterested witnesses could form basis for conviction. On the other hand, Mirza Abdullah Jan, Advocate representing the accused described the prosecution case as unnatural, the conduct of the witnesses as improbable in that they had neither made any row nor informed the relations of the deceased nor went to the police station for report and similarly, he also criticized the evidence of the eye-witnesses as exaggerated and improved because according to him what was stated in Court by these witnesses was not conveyed to P.W. Abdul Jabbar the first informant.
7. We studied the record to verify the grounds given for acquittal and to assess and appreciate the arguments advanced at the bar.
8. We are mindful of the difference and extent of interference in appeal against acquittal and that against conviction. It is by now well-settled that in appeal against acquittal due weight is given to the finding of the acquitting Court and acquittal order cannot be dislodged merely because on reappraisal of evidence a different conclusion would be possible if the conclusion reached by the acquitting Court is not unreasonable and manifestly wrong and if such a finding is equally possible. We have to judge the reasons for acquittal on this guideline and criterion and to see whether these reasonably arise in the case and whether in the facts and circumstances they can form justification for an acquittal order.
9. The episode allegedly happened at 5-30 p.m. While the report about it was lodged in police station with a distance of 15 miles at 1-30 a.m. In the night after about 8 hours. If in fact Abdul Jabbar P.W.7 had arrived at the scene after hearing fire. Shots and if the two eye-witnesses Allah Ditta P.W.8 and Sadiq P.W.9 were really present with the deceased then this much inordinate delay in the report would not have occurred. An undue, unreasonable and unexplained delay in filing F.I.R.
Leads to suspicion and reflects on the truth of the prosecution case. It has always been stressed that an early information of the crime must be supplied to the police in order to avoid the criticism of the report being manipulated and output of deliberation and consultation. Keeping in view the working of human mind and probable conduct, the two alleged eye-witnesses should have made alarm and hue and cry to attract the people and would have approached the relations of the deceased to inform them or would themselves have rushed to the police station for report. But it is curious that these two witnesses did not do any such thing and instead chose to sit by the side of the deceased. This fact has a great repercussion over their conduct and creates reasonable doubt in their presence on the spot. On all the entrance wounds of Raja Mubarak Khan are charring marks while the doctor has although not shown such marks on the wounds of the other deceased but in his examination-in-chief he said that charring was also present at the place of entrance, clothes of the deceased' and again in cross-examination, in both the cases on the dead bodies I found the charring'. But the site plan indicates that the shots have been fired from much greater distance than a charring range. It is in the examination-in-chief of P.W.8 Allah Ditta, 'thereafter Abid and Yasrab accused fired two more shots from behind and boulders across the Nallah' and then he stated in cross-examination, `Abid Ali and Yasrab accused had fired from behind the boulders in standing position' and again, 'Simultaneously the firing came from the accused sitting behind the boulders'. The other eye-witness P.W.9 Sadiq when asked in cross-examination stated, 'It is incorrectly recorded in my statement under section 164, Cr.P.C. That Abid and Yasrab accused while firing at Raja Khaqan were hiding themselves behind the boulders. It is incorrectly recorded in my statement under section 164, Cr.P.C. That the accused and the absconders disappeared behind a hillock after the occurrence'. In this context if we refer to points Nos.17 and 20 in the site plan wherein the presence of Yasrab and Abid has been indicated that would show the following entry against each of those points:--{{URDU TEXT}} ' In these circumstances their identity from those points could not be ascertained and it was not shown by the witnesses as to how in such a concealed position they were able to identify the accused. It was also added in their statements in Court by these witnesses that the accused continued firing even when they reached their Dhok (cattleshed), although it was not so stated by them in their statements under sections 161 and 164, Cr.P.C. This addition was with the obvious purpose to justify recovery of certain empties from there.
10. Much emphasis was laid on the independent position of the two eyewitnesses and it was, therefore, insisted that in view of their unconnected status they must be believed. This would not be safe standard and guide for administration of justice as it would not be correct to assume that such an ostensibly neutral witness will depose nothing but truth. Rather his testimony should be judged from the innate worth of his deposition and not by the fact that having no relationship with those for whom he deposes or animosity with those against whom he deposes, therefore, irrespective of intrinsic value of his statement it must be adopted for conviction. If the Court is not satisfied with the evidence of even a disinterested witness and after the testimony of such a witness is found inconsistent and incompatible with other important materials and circumstances of very high standard and unimpeachable character then such evidence cannot be used for conviction.
11. Keeping in view the undue delay in making the F.I.R. Unnatural conduct of the alleged eye- witnesses, material improvements in the statements, conflict of ocular account with that of medical evidence and site plan and the other circumstances indicated above it is obvious that the learned trial Court was legally justified in extending benefit of doubt to the accused-respondents.
We find this appeal without merit and accordingly dismiss it. We may, however, observe that our observations in this judgment would in no way affect the merit of the case against the absconders as that would be decided on the basis of the evidence to be led in the trial against them.