' ALI HUSSAIN QAZILBASH, J.--This is an appeal by leave against the judgment of a learned Division Bench of the Peshawar High Court, dated 27-2-1979.
2. The appellant alongwith his brother Akram Khan was tried for the murder of Anjar Khan, his co- villager. Both were convicted under section 302/34, P.P.C. And sentenced to imprisonment for life by the learned Additional Sessions Judge, Bannu on 15-10-1978. On appeal, the High Court, as per the impugned judgment, acquitted Akram Khan but maintained the conviction and sentence of Wreshmeen Khan appellant.
3. According to the version of the prosecution, on 12-2-1978 at morning meals time, Anjar Khan was heading towards his house and as soon as he reached near the house he was tired upon, one shot each, by Wreshmeen Khan and Akram Khan, sons of Nawaz Khan, who were armed with .12 bore Landiwal shotguns. As a result, Anjar Khan ran for a few paces, then fell down on the ground and succumbed to his injuries. The occurrence was witnessed by Mst. Nur Bibi, mother of the deceased, and Mirza Ali, the complainant.
4. The report of the occurrence was made by Mirza Ali who also stated that there was no previous enmity between the parties. This report was recorded by Sirajud Din, A.S.I., P.S. Pezu, as per F.I.R. Exh.
PA. Thereafter Sirajud Din alongwith constables was about to leave for the spot when he found that the dead body was being brought by the co-villagers to the police station. He received the dead body at the gate of the police station, prepared the injury sheet and the inquest report of the deceased and sent the dead body for post-mortem examination. He then proceeded to the spot, prepared the site plan at the pointation of the complainant. He recorded the statements of the witnesses and recovered three cardboards and one wad of .12 bore shotgun from points 8, 9 and 10 as per memo. Exh.P.H. He also recovered one pellet of .12 bore from point No,11 in the wall. He also took into possession blood-stained earth from the spot. He then handed over the investigation to Haq Nawaz Khan, then S.H.O., who vide recovery memo. Exh.P.J. Took into possession the shirt (P.1) belonging to the deceased. The appellant and his acquitted co-accused were arrested on 15-2- 1978 who led the police party to their house and a shotgun bearing No,2620 (Exh.P.4), an empty (Exh.P.5) and a live cartridge (Exh.P.6) were recovered at their instance from a Kotha situate in the limits of Indari and Keekri vide memo. Exh.P.L. And sealed them in a parcel vide memo. Exh.P.M. He also took into possession one licence No,110-P-60 in respect of the gun from the pocket of Wreshmeen appellant during his search. The weapon of offence alongwith the empty and live cartridge was then sent to the Forensic Science Laboratory. The report of the Arms Expert is Ex.P.O.
That of the Chemical Examiner is Ex. P.N. And of the Serologist is Ex.P.P. According to the report of the Forensic Science Laboratory, the empty was reported to have been fired from the gun recovered at the instance of the appellant and the acquitted co-accused.
5. After the completion of the investigation, the appellant and the acquitted co-accused were put to trial where the prosecution in support of its case produced as many as 11 witnesses including Dr. Chiragh Hussain Shah who appeared as P.W.8. On conducting the post-mortem examination of the dead body of Anjar Khan, the doctor found as many as six fire-arm in-let wounds 1/8" each on the back of the right side of the chest in an area of 3" x 3" situate between the medial border of the right scapula and midline of the border; five fire-arm outlet wounds 1/8" x 1/8" each on the front of the right side of the chest in the area between the right nipple and the clavicular bone. The direction of all these wounds was from back to the front and a little from left to the right. Two abrasions, 1" x 1" and 1/2" x 1/4", were also found on the back of the right side of the chest. A pellet was recovered from the front of the chest 1/2" above the right nipple. On internal examination all the vital organs were found injured, the stomach was found to be healthy and almost empty. One pellet weighing 65 grains was recovered from the dead body and handed over to the police.
6. The appellant and the acquitted co-accused in their statements under section 342, Cr.P.C.
Denied the charge levelled against them. They also denied the motive set up by the prosecution at the trial, the recovery of the gun Ex.P.4, empty Ex.P.5 and live cartridge Ex.P.6 at their instance. They further stated that no empty was recovered from the roof of their Kotha as alleged by the prosecution. The gun and the empty remained with the police for quite a long time. It concocted a case and then sent a fictitious empty alongwith the shot gun to make a false case against them.
The report of the Arms Expert is not based on facts. They denied their abscondence and stated to have voluntarily surrendered themselves to the police.
7. The trial, as stated earlier, culminated in the conviction and sentence of the appellant and the acquitted co-accused. On their appeal, the High Court acquitted Akram Khan but maintained the conviction and sentence of the appellant as per the impugned judgment.
8. Leave in this case has been granted to consider whether the recovery of the gun and the alleged abscondence formed sufficient corroboration of the A tainted ocular evidence against the appellant.
9. The learned counsel for the parties heard for and against the appeal. The eye-version account of the incident has been furnished in this case by Mirza Ali (P.W. 3) and Mst.Noor Bibi (P.W.4). Though both these witnesses are not interested witnesses in the classical sense but since the eye-version account furnished by them is in direct conflict with the medical evidence, therefore, the same cannot be relied upon unless corroborated by strong independent and unimpeachable circumstantial evidence. In this regard, the learned Judges of the High Court in convicting the appellant mainly relied on the recovery of the gun Ex.P.4 containing an empty cartridge from the Kotha of the appellant and the acquitted co-accused together with their absence from the village after the commission of the offence as a corroborative circumstance. But as the record stands, we find that the said corroboration is highly unsatisfactory and it cannot be made the basis for conviction on a capital charge. The appellant and the acquitted co-accused were arrested on 15- 2-1978 and the gun in question was recovered on 19-2-1978, i.e., four days after their arrest. The recovery was made at the joint pointation of the appellant and the acquitted co-accused from the Kotha of the appellant, but it could have been placed there either by Akram Khan, the acquitted accused, or anyone else. It has been admitted by Haq Nawaz Khan, S.H.O., at the trial that he kept the shotgun and the empty sealed in the Police Station, Pezu upto 23-2-1978, therefore, under the circumstances, the mere recovery of a gun with an empty cartridge in it does not necessarily connect the appellant with the offence in question. Moreover, no cartridge was found at the spot, with which the gun could have been matched to connect it with the crime. As for the abscondence, no such evidence has been brought on the record to; prove that the appellant had absconded from the village after the occurrence. The prosecution has also failed to establish the motive set up by them for the commission of the crime.
10. The view, therefore,that we take in the matter is that the case set up against the appellant is not free from doubt, we, therefore, accept the appeal and D set aside the order of conviction and sentence of the appellant and direct that he should be released forthwith if not required in any other case.