' Yaqoob Khan, Mahla Khan and Hakam Khan were tried under section 302/307/34, P.P.C. By the learned Additional Sessions Judge, Chakwal, for the murder of Sardar Khan deceased. The learned trial Court vide its judgment, dated 11-11-1987, convicted Yaqoob Khan and Mahla Khan under section 304, P.P.C. And sentenced them to imprisonment for life and a fine of Rs,5,000 each or in default thereof to further undergo R.I. For one year each, whereas Hakam Khan was acquitted of the charge. It was further directed that the fine if realized, it shall be paid to the legal heirs of the deceased as compensation. The convicts have filed the present appeal.
2. Muhammad Ashraf complainant has filed Criminal Revision No, 35 of 1987, against the appellants and the acquitted co-accused, for their conviction under section 302/307/34, P.P.C.
3. Both the matters shall be disposed of by this judgment.
4. The incident took place on 10-8-1984 at about Dopehrwela' in the area of Dhoke Murad Wand Dakhli Pichnand. F.I.R. Exh.P.O. Was drawn up on the basis of statement Exh.P.O./1 of Muhammad Ashraf, real brother of the deceased, which was recorded on 10-8-1984 at 10-00 p.m. At Danda Shah Balwal, by Hasrat Mohani, S.I. (P.W.15).
5. The prosecution case is that on the fateful day Muhammad Ashraf complainant (P.W.10), his real brother Sardar Khan (deceased) and Amir Khan injured (P.W.12) their cousin, were going to plough the land known as Chhab Wali'. When they reached opposite the land of Dlail Khan Chairman, they were allegedly waylaid by the appellants, Hakam Khan (since acquitted) and late Mansab Khan accused, who were all armed with shot guns.
' It is alleged that Hakam Khan (since acquitted) shouted a Lalkara while Yaqoob Khan appellant and Mansab Khan (since dead) fired at Sardar Khan one after the other which hit him on the chest.
Then Mahla Khan appellant fired which hit Sardar Khan on left side of the back above the buttocks.
The complainant (P.W.10) raised alarm and went ahead to give support to Sardar Khan, but Hakam Than (since acquitted) fired the third shot, which hit the complainant on his face and neck. Yaqoob Than appellant fired another shot which hit the complainant on his left hand. Amir Than (P.W.12) went ahead on which Mansab Khan (deceased accused) fired at him, which hit him on the right thigh and in the abdomen. Mushtaq Ali (P.W.13), Ahmed Than (P.W.11) and another Ahmed Than son of Lal Khan, who were allegedly coming behind the injured P.Ws. And the deceased Sardar Than at a little distance, saw the occurrence and rescued the injured from the assailants. Motive behind the occurrence was the land dispute between the parties.
6. Sardar Than (deceased) who was then badly injured, was carried to Civil Hospital, Talagang.
Muhammad Ashraf complainant proceeded to the police station to lodge a report, but on the way he met Hasrat Mohani S.I. At Danda Shah Balawal, where he recorded his statement Exh.P.O./1.
7. Hasrat Mohani, S.I. After recording the statement Exh.P.O./1 of Muhammad Ashraf at Danda Shah Balawal, sent the same to Police Station Lawa, where formal F.I.R. Exh.P.O. Was recorded on 10-8- 1984 at 10-30 p.m. The S.I. Prepared the injury statements Exh.P.P. And Exh.P.O. Respectively of Amir Than and Muhammad Ashraf P.Ws. He also recorded the statements of two eyewitnesses namely, Ahmad Than son of Allah Yar (P.W.11) and Ahmad Than son of Lal Than (given up P.W.). The Investigating Officer inspected the spot and collected 13 empties of cartridges P.10/1 to 13 and made them into a sealed parcel vide memo. Exh.P.H. He also collected the blood-stained earth from the spot and made it into a sealed parcel vide memo. Exh.P.I.
8. The Medical Officer, Talagang sent two M.L.Rs, of the injured P.Ws., i,e, Amir Than and Muhammad Ashraf and the blood-stained clothes belonging to Sardar Than (deceased), then injured, alongwith a sealed phial containing two live cartridges which the M.O. Had recovered from the pocket of the shirt of Sardar Khan (deceased) at the time of his medical examination. The Investigating Officer took the clothes of Sardar Than Exh.P.1 to Exh.P.3 and a phial containing two cartridges P.4/1 to 2 into possession vide memo. Exh.P.G. On 11-8-1984 the Investigating Officer recorded the statements of three P.Ws. Under section 161, Cr.P.C. On 3-9-1984 he received information that Sardar Than had expired in the hospital at Attock, hence the offence was altered from section 307, P.P.C. To section 302, P.P.C. The Investigating Officer arrested Hakam Khan (since acquitted) on 17-8-1984, Mahla Than and Mansab Than accused on 18-8-1984 and Yaqoob Than appellant on 28-8-1984. On 19-8-1984 the Investigating Officer recovered gun Exh.P.6 from Mahla Than appellant vide memo. Exh.P.K. On 16-8-1984 Yaqoob Than appellant produced gun Exh.P.9 which he took into possession vide memo. Exh.P.M. The Investigating Officer prepared the site-plans showing the place of recoveries Exh.P.K./1 of Mahla Khan appellant and Exh.P.F./1 of Yaqoob Than appellant. The Investigating Officer also got prepared site-plan of the place of occurrence in triplicate Exh.P.E., Exh.P.E./ and Exh.P.E./2 on 16-8-1984 by Haji Ahmad Patwari (P.W.3). The articles recovered were sent to the concerned laboratories for different tests on which positive reports were received.
9. Ghulam Muhammad (P.W.14) who was then the A.S.P./S.D.P.O. Also investigated the case partly and found the accused aggressors who committed the murder of Sardar Khan. The accused were challaned.
10. Mansab Khan accused having died before trial, hence the two appellants and Hakam Khan (since acquitted) were charged under section 302/34, P.P.C. For causing the death of Sardar Khan in furtherance of their common intention and under section 307/34, P.P.C. For murderous assault on the two injured P.Ws. With the same intention.
11. Vide report Exh.P.R. Of the Chemical Examiner, the earth was stained with blood. The Serologist vide his report Exh.P.S. Opined that it was stained with human blood.
12. The Forensic Science Expert vide his report Exh.P.I. Opined that crime empty marked C.3 was fired from the gun recovered from Mansab Khan accused, crime empty marked C.7 from the gun of Mahla Khan accused, crime empty marked C.8 was fired from the gun of Yaqoob Khan accused, while eight empties out of 13 were not fired from any of the guns of the accused and one-was a missed cartridge.
13. On 10-8-1984 Dr. Awais Ahmed Bhutta (P.W.1) examined Sardar Khan while he was alive and found five fire-arm wounds on different parts of his body. Out of these injuries, three were declared to be dangerous to life and the rest as simple.
14. On the death of Sardar Khan the post-mortem examination was conducted by Dr. S.M. Hussain Naqvi, Medical Officer, District Hospital, Attock (P.W.2) on 3-9-1984, who found seven injuries on the dead body. In the opinion of the doctor injury No,2 caused the death as it had resulted in duodenal perforation fistula shock and death. Injury No,2 is reproduced below:-- "(2) Healed scar 1/4" on the extreme lower chest just above the epigastriums lent to the middle line."
15. On 11-8-1984 Dr. Awais Ahmed Bhutta (P.W.1) medically examined Amir Khan (P.W.12) and found two simple abrasions on his person.
16. Muhammad Ashraf (P.W.10) was also medically examined by the said doctor on the same date and he had two lacerated wounds, two incised wounds, one fire-arm wound and one abrasion on his person. All the injuries were declared simple in nature.
17. Yaqoob Khan appellant when examined denied the prosecution allegations and made a detailed statement which is to the following effect:-- "The P.Ws. Have deposed because they are related inter se, to a very near degree and also they are our old enemies. Sometime prior to the present occurrence a civil declaratory suit was brought against the complainant party by me and my co-accused in the Civil Court at Attock in which interim stay order on 22-7-1984 was issued by the learned Civil Judge against the complainant party, defendants in the suit with the direction that they should not interfere with our possession over the suit land and the next date for confirmation of the stay order as fixed by that Court was 5- 9-1984. The complainant party wanted to establish their possession over the disputed land and to get the stay order vacated, they had launched an attack to take forcible possession of the suit land and to intimidate, annoy and to murder us. On the day of occurrence we had employed a Buldozer belonging to Government at our owned and possessed land known as Baduwala where Mansab Khan my co-accused was present and was having check on the work done by Buldozer.
Muhammad Ashraf complainant alongwith Sardar Khan deceased and few others, their relatives and party-men having armed themselves with fire-arms and deadly weapons came there shouting to take forcible possession. When they actually criminally trespassed over the land owned and possessed by us Mansab Khan my co-accused beseached and humbly requested them to disperse, but they did not agree and were bent upon trespassing. They started firing at Mansab Khan my co-accused. The land being uneven and Khuddar Mansab Khan took refuge in low lying places. The complainant party continued firing during the whole day, Mansab Khan my co- accused had been trying to save his life by hiding behind hilly and uneven places. He also fired shot in defence of his person and property and had been able to push aside to a large considerable distance and he had hidden himself behind hillock, but Sardar Khan deceased, Muhammad Ashraf P.W. And his companions reached there in his chase to murder him. The entire occurrence took place in the land owned and possessed by us, the accused persons. During the cross-firing some stray pellets had hit the deceased and the complainant Muhammad Ashraf. Haji Mulla Mehr Khan, Pir Latif Shah and some other respectables reached the spot and requested the parties to stop firing at which firing was stopped. Cross-cases were registered by the parties under section 307, P.P.C. Because Sardar Khan was alive at that time. Sardar Khan (deceased) had also made dying declaration before the learned A.C. Talagang in which he had admitted cross-firing between the parties. He had also admitted that he and his companions had fired at the accused persons (us). He had also admitted in that dying declaration that Mahla Khan and Hakam Khan accused persons were not present at the spot. In that dying declaration he had not shown the presence of the two Ahmed Khan P.Ws. Alongwith Mushtaq P.W. At the crime spot and having witnessed this occurrence. This dying declaration was taken notice of by the learned Sessions Judge, Attock on 22-11-1984 when the learned Sessions Judge was pleased to grant bail to us, later on the complainant party managed to destroy, steal, that dying declaration because their versions given in the F.I.R. Stood contradicted badly. The complainant party has brought this false case in order to save themselves from the clutches of law and punishment."
' Similar was the statement of Mahla Khan appellant. In defence Mahla Khan appellant produced documentary evidence in the form of two orders passed by the learned Sessions Judge, copy of petition under Order XXXIX, Rules 1 and 2, C.P.C. Filed before the Civil Judge and also copy of the interim order passed on the said application.
18. The trial Court placing explicit reliance on the ocular account, recovery of guns from the appellants fortified by the medical evidence concluded that the appellants were guilty of culpable homicide of Sardar Khan (deceased) not amounting to murder and as such convicted and sentenced them as indicated above.
19. I have heard the learned counsel for the parties at length and have minutely gone through the record with their able assistance.
20. The learned defence counsel contended that the occurrence took place at 6-00 p.m. On 10-8- 1984 whereas F.I.R. Was lodged at 8-45 a.m. On 11-8-1984, with inordinate delay, which has not been properly explained by the prosecution. The learned counsel further urged that in view of the counter-version, that complainant party wanted to take forcible possession of the land in dispute which was in the physical possession of the accused party, and they had obtained the stay order of the Civil Court on 22-7-1984 till 5-9-1984, in this background the delay becomes very material, as the complainant in order to suppress their misdeed, after deliberation has given a false version in the F.I.R.
20-A. I have considered this aspect of the case and find lot of force in the submission of the learned counsel for the defence. In the present case, delay is fatal to the prosecution, in view of the findings of the trial Court that occurrence has not taken place as deposed to by the eye-witnesses before the Court. The learned defence counsel submitted that in view of the background of enmity, mere presence of so-called eye-witnesses by itself is not sufficient to bring home the guilt to the appellants. Most important point for consideration by the trial Court was, 'whether, ocular evidence gets any corroboration from other pieces of evidence, which is coming from unimpeachable source or not because no conviction can be recorded on the basis of tainted evidence without corroboration. He has referred to the medical evidence, which negates the ocular version, because M.L.R. Of Amir Khan P.W.12, Exh.P.B. Shows that he received six injuries, out of which injury No,6 was with blunt weapon, which by itself is sufficient to demolish the case of the prosecution. I find substantial force in the submission of the defence counsel, that the prosecution evidence is not confidence inspiring, rather the prosecution has withheld certain important piece of prosecution evidence from the Court, hence the case of prosecution is not free from doubt.
20-B. The learned counsel has referred to the statements of eye-witnesses, who deposed, that in all, six shots were fired during the occurrence, whereas the Investigating Officer (P.W.15) has stated that on 11-8-1984 he inspected the spot and collected 13 empties Exhs.P.10/1 to 10 from the different places vide memo. Exh.P.H. The Investigating Officer further desposed that there might be more empties than he recovered at the spot, which he could not collect. He also deposed that Medical Officer, Talagang gave him two live cartridges, which he had recovered from the pocket of the shirt of Sardar Khan deceased at the time of his examination. The prosecution has tried to explain this fact through the mouth of Mushtaq P.W.13, who deposed, that he was having licensed .12 bore gun with him, and on asking by the deceased, he fired in the air, but he became puzzled and threw 2/3 cartridges and the gun towards Sardar Khan, and ran away. He was duly confronted with his statement under section 161, Cr.P.C. Exh.D.C. Where it was not so recorded. The recovery of so many crime empties from the spot, lends support to the defence version that complainant party had not gone there innocently, but their object was to forcibly occupy the disputed land, before 5-9-1984 to frustrate the status quo order granted by the Civil Court. The learned counsel next contended that the trial Court has placed reliance on the testimony of Hasrat Mohani P.W.15, that two Chokidars, namely Sher Muhammad and Gohar Khan appeared before him on 11-8-1984, and according to their version, both the parties resorted to firing at each other. The Investigating Officer further admitted that both the parties had been firing at each other from the morning till the evening on the day of occurrence.
21. Learned counsel for the State has tried to dispel this impression by referring to the evidence of Ghulam Muhammad, A.S.P. P.W.14 that the accused party was aggressor according to his investigation.
22. I am afraid, in the presence of overwhelming evidence in support of defence-version, that there was cross-firing and background of enmity, no explicit reliance can be placed upon the uncorroborated and tainted evidence adduced by the prosecution which makes the prosecution case further doubtful.
23. The trial Court has erred in law while discarding all the pieces of evidence of the prosecution, and later maintaining the conviction solely on the ground that the complaint filed by the appellants shows that they were present at the scene of occurrence. This evidence by itself is not sufficient to sustain conviction.
23-A. The learned counsel has referred to the dying declaration, which has been suppressed by the prosecution, which apparently supports the defence plea.
' The counsel for the State assisted by the learned counsel for the complainant has adopted the same reasons which prevailed with the trial Court, that Mansab alone could not cause these injuries to so many persons, hence the prosecution has proved its case beyond reasonable doubt.
This argument of the State counsel can be accepted only, if the salutary principle of law applicable in criminal cases is ignored altogether, as benefit of doubt always goes to the defence and not to the prosecution.
24. I have already pointed out in the preceding paras., that in this case, the ocular evidence is coming from the mouth of highly inimical and interested witnesses, it cannot be believed, unless corroborated by some other evidence, coming from the unimpeachable source, which is lacking in the present case. The prosecution has miserably failed to prove its case, against the appellants.
25. The evidence relied upon by the trial Court, that appellants' names are mentioned as persons who were present at the time of occurrence, may have some moral value, but conviction cannot be maintained on such evidence. In Nisar Hussain v.The State PLD 1964 (W.P.) Pesh. 59 it has been held:-- "However, morally convinced a Judge may feel as to the truth of a particular fact, unless there is a legal proof of its existence, he cannot take it as 'proved', and moral certainty of suspicion, however grave, cannot be allowed to take the place of proof."
' Their Lordships also quoted the following words of caution of Mr. Justice Darling in the trial of Steinie Morrison when addressing the jury:- "All that about the revolver, and so on, is very suspicious, gentlemen, but you know you must not convict him on a thousand suspicious, you must not add a thousand suspicious circumstances together and say, 'that is proof No you must find somewhere a solid anchorage upon which you can say, I am secure of this basis."
26. In view of the above discussion, I accept this appeal, set aside the conviction of the appellants and acquit them. The revision petition is dismissed in limine.
27. Yaqoob Khan appellant is on bail. He is discharged of his bail bond. Mahla Khan appellant be set at liberty forthwith, if not required to be detained in any other case. . Revision petition dismissed