RAJA AFRASIAB KHAN, J: - Abdul Qayyum (31), Nasrullah Khan (27) sons of Nasim Khan and Nasir Khan (22) son of Amir Khan, were tried by Mr. Azad Muhammad Khan, learned Additional Sessions Judge, Attock, for the murder of Gul Badshah (48) son of Sher Khan and a murderous assault upon Mawaz Khan (32) son of Sher Khan P.W. By judgment, dated 5-4-1987, the learned trial Judge convicted Abdul Qayyum and Nasrullah Khan under section 302/34, P.P.C. Abdul Qayyum was sentenced to death plus a fine of Rs.8,000 or in default thereof to suffer R.I. For two years. Nasrullah Khan was sentenced to imprisonment for life and to pay a fine of Rs.8,000 or in default thereof to undergo further R.I. For two years. Both of them were ordered to pay compensation of Rs.10,000 each to the legal heirs of the deceased or in default thereof to suffer R.I. For six months each.
Benefit of section 382-B, Cr.P.C. Was allowed to Nasrullah Khan. Nasir Khan was, however, acquitted of the charge by the learned trial Judge, vide the same judgment. The convicts have challenged their conviction and sentence by filing Criminal Appeal No.239 of 1987. The learned trial Judge has sent a reference for confirmation of death sentence of Abdul Qayyum. The complainant Mawaz Khan has filed Criminal Revision No.89 of 1987 praying for confirmation of the death sentence awarded to Abdul Qayyum and enhancement of the compensation amount from Rs.10,000 to Rs.1,00,000. It is further prayed that the sentence of life imprisonment of Nasrullah Khan may be enhanced to death. It is also prayed that the case of Nasir Khan acquitted co---accused may be sent back to the learned Additional Sessions Judge for re-writing the judgment and that he may be awarded normal penalty provided under section 302, P.P.C. The conviction and sentence of all the accused under section 307/34, P.P.C. Is also prayed. We propose to dispose of above matters by this judgment.
2. The prosecution story is that Mawaz Khan (complainant) is a resident of village Turang Mela and is a member of ~ the Armed Forces of Pakistan. On 2-1-1986, he came on leave for two months. On 6-1-1986, early in the morning, Mawaz Khan, his brother Gul Badshah, were going towards Dhok Karamat Dakhli Chhamb in order to meet their aunt Mst. Begman Bibi. At about 9-30 a.m., when they reached near a Beri tree, in the land of Hakeem Khan, in front of them, Abdul Qayyum, Nasrullah Khan and Nasir Khan armed with .12 bore guns were sitting in an ambush behind the boundary line of the land of Sherin Khan. As soon as Mawaz Khan and his brother Gul Badshah went a little ahead of the Beri tree, Abdul Qayyum fired which hit Gul Badshah on his chest. Second shot was fired by Nasrullah Khan, which hit Gul Badshah on his mouth. The complainant hid himself behind a Beri tree in order to save his life. Third shot was fired by Abdul Qayyum, which hit Gul Badshah on his right flank on the ribs. On receipt of the injury, Gul Badshah while staggering reached another Beri tree and there he fell down. There after all the accused indulged in indiscriminate firing. On an alarm, Mamraiz Khan and Mst. Gullaban Bibi reached the spot and witnessed the occurrence. The accused while firing in the air, shouted that if any body came near them, he would be done to death and then went away. Gul Badshah succumbed to his injuries on the spot. Motive is that in the year 1967, Mst. Noornama, sister of Abdul Qayyum,, and Nasrullah Khan was abducted by Adam Khan, the elder brother of Mawaz Khan complainant. After a few days of the said abduction, Muhammad Khan and Makar Din, the paternal and maternal --uncles of Mawaz Khan were murdered by Allah Khan and Yousaf Khan, close relatives of the accused. On account of this grudge, in execution of their common intention, the accused murdered Gul Badshah and made murderous assault on the complainant. On statement Exh P.C. Of Mawaz Khan complainant P.W.11, recorded by Raja Walayat Khan, S.I. (P.W.12), Ali Hussain Shah Naib-Moharrar (P.W.5) recorded the formal F.I.R. Exh.P.C./1.
3. Raja Walayat Hussain, S.I. P.W.12, investigated the case. He visited the spot, prepared injury statement Exh. P.M. And inquest report Exh P.N. Of the deceased. The dead body was entrusted to Munir Hussain Constable for taking it to mortuary. The blood-stained earth and a bark of tree were taken into possession vide memo. Exh. P.D. Blood-stained earth from the place where the dead body was found lying was also taken into possession vide memo. Exh. P.E. Three crime-empties of .12 bore gun were taken into possession vide memo. Exh.P.F. The Police Officer also recovered two more crime-empties of .12 bore gun, which were taken into possession vide memo. Exh.P.G. The last worn clothes of the deceased, Shirt P.1, Shalwar P.2, Bunyan P.3, Sweater P.4, Sweater P.5, a pair of Chappal P.6/1-2, sock P.7, Cap P.8 were taken into possession vide memo. Exh. P.B. On 14-1-1986 Abdul Qayyum was arrested by the Sub-Inspector from Khattakabad Railway Station and on his personal search, Pay Book P.9, a letter P.10, a bunch of keys P.11, a wrist watch P.12 and currency notes of Rs.40 (four notes of the denomination of Rs.10 each) were taken into possession vide memo. Exh. P.J. On 17-1-1986, while in police custody, Abdul Qayyum led to the recovery of a double barrel shot gun of .12 bore P14 and its licence P.15 which were taken into possession vide memo. Exh.
P.K. On the same day, the Sub-Inspector arrested Nasir Khan and Nasrullah accused from Jhamat Railway Station. On personal search of Nasrullah Khan accused a -sum of Rs.30 (Three notes of the denomination of Rs.10 each) was recovered and was taken into possession vide memo. Exh. P.Q. On 18-1-1986 Nasrullah Khan led to the recovery of a double barrel shotgun of .12 bore P.16 and its licence P.17 which were taken into possession vide memo. Exh P.L. Site-Plans Exh P.A. And Exh.P.A./1 were got prepared by the Sub-Inspector from Muhammad Ijaz Patwari P.W.1. The witness conceded that during investigation he found Nasir Khan innocent. In cross--examination, he stated that he handed over the crime-empties duly sealed to Moharrar on 16-1-1986. He deposed that he could not say as to when those crime empties were sent to Forensic Science Laboratory because it was the job of Moharrar to send the empties immediately. Positive reports of the Chemical Examiner Exh P.U. And Serologist Exh P.S. And Forensic Science Laboratory Exh P.T. Were tendered in evidence.
4. Dr. Muhammad Khan P.W.8 conducted the post-mortem examination on the dead body of Gul Badshah and found the following injuries on it: (1)A fire-arm wound on left and front side of chest 4 c.m. x 3 c.m. And 11c.m. Above left nipple; (2)A fire-arm wound on right side of chest 1 c.m. x 1 c.m. And 16 c.m. Below right nipple; (3)A fire-arm wound on left cheek 1 c.m. x 1 c.m. x bone deep with underneath fracture of left molor tooth.
4)An abrasion on nose 1 c.m. x 1 c.m.
Injuries Nos.1, 2 and 3 were caused with a fire-arm weapon and were grievous in nature. Injury No.4 was caused with a blunt weapon and was simple in nature. It was opined that death occurred as a result of shock and haemorrhage, resulting from injuries Nos.1 and 2 which were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem. The probable time between injuries and death was 15 to 20 minutes and between death and post-mortem examination was within 24 hours. In cross-examination the Doctor deposed that injury No.2 was going upward from downward. He deposed that injury No.1 was possibly the exit wound of injury No.2.
5. Eye witness account was furnished by Mst.Gullaban Bibi P.W.10 and Mawaz Khan P.W.11 Abdul Qayyum while making a statement under section 342, Cr.P.C. Denied the allegations levelled against him and pleaded that he had been involved in the case falsely. He pleaded his innocence.
To the same effect are the statements made by his other co-accused. Abdul Qayyum also made a statement on oath under section 340, Cr.P.C. In which he deposed that he did not murder Gul Badshah. He also stated that no murderous assault was made by him on Mawaz Khan P.W.
6. Learned counsel contends that enmity has been admitted by both the prosecution witnesses and as such the evidence deposed by them is interested and inimical. Learned counsel maintains that in view of enmity existing between the parties, corroboration to the eye-witness account was necessary which is missing in this case. He, therefore, submits that the eye-witness account should be rejected. It is argued that the medical evidence runs counter to the ocular account. It is maintained that there is no report of the Ballistic Expert on the empties sent to the Forensic Science Laboratory for test in support of prosecution case. This being so, according to the learned counsel, the recoveries are of no consequence at all. The learned State counsel has defended the conviction and sentence of the appellant.
7. We have heard the learned counsel for the parties at considerable length and have read the record with utmost care. We are of the view that Mst. Gullaban Bibi P.W.10 and Nawaz Khan P.W.Il did not witness the occurrence for the reasons to follow. Mst. Gullaban Bibi P.W.10 deposed that on the day of occurrence, she was going towards Dhok Shadi. According to her, Mawaz Khan P.W.11 and Gul Badshah deceased were going towards Dhok Karamat. She deposed that they were attacked by Abdul Qayyum, Nasir Khan and Nasrullah while coming from the western side. She stated that first shot fired by Abdul Qayyum hit Gul Badshah in his chest. The shot of Nasrullah Khan hit Gul Badshah on his face. Another shot was fired by Abdul Qayyum hitting the deceased on his right flank. She continued to depose that on receipt of above injuries, the victim staggered about 50/60 paces and was able to go towards another Beri tree where he fell down and died. Almost similar is the deposition made by Mawaz Khan P.W.11 The medical evidence of Dr. Muhammad Khan P.W.8 demonstrates that it is not possible for a person to walk or run up to a distance of 70/80 yards after receiving injuries Nos. 1 to 3. He says that victim must have bled profusely after receiving the said injuries. As per the medical evidence, it is, therefore, clear that Gul Badshah (deceased) was not in a position to cover such a distance of 50/60 paces after receiving the gunshot injuries Nos. 1 to 3. In our view the ocular account is negated by the medical evidence. The only irresistible conclusion of the above discussion would be that Mst. Gullaban Bibi P.W.10 and Mawaz Khan P.W. 11 were not present on the spot to see the occurrence. Apart from the above, it is in the evidence that there is deep-rooted enmity between the parties and as such Nawaz Khan was also an enemy of the assailants like Gul Badshah. This being so, he would not have been spared by the accused in case he was present at the spot. Admittedly, all shots were fired while aiming at Gul Badshah. According to evidence, the accused did not fire at Mawaz Khan,' P.W.11. The accused were heavily armed and as such the complainant would have been an easy target for them. Even while leaving the place of occurrence, the accused indulged in an ineffective firing. The fact that the accused fired in the air and did not fire at the prosecution witnesses has, in our view, shaken the very foundations of the prosecution case. It is in the evidence that empties were recovered prior to the recoveries of gun from the accused. It is established that the said empties were sent to the Forensic Science Laboratory for examination after the recovery of guns. Thus, the possibility that the police had fired the empties from the guns and thereafter managed to send them to the J Laboratory cannot be ruled out. In the circumstances, the recoveries of empties and guns are wholly insignificant to the prosecution case. The empties were recovered on 6-1-1986 and were sent to Forensic Science Laboratory for test on 18-1-1986. This delay *in sending the empties to the Forensic Science Laboratory has not at all been explained by the prosecution. The case as a whole is thus not free from doubts.
8. Conclusion of the above discussion is that the prosecution has failed to prove its case beyond reasonable doubt against the appellants. Accordingly, their conviction and sentence is set aside and they are acquitted. They shall be released forthwith if not required in any other criminal case.
The appeal succeeds and is allowed. The death sentence of Abdul Qayyum is not confirmed. The murder reference is answered in negative.