1. MUHAMMAD ISHAQ KHAN, J.--- This is a joint appeal by Aftab Zaman (45/50) and Iqbal Zaman (40/45) sons of Khanan Khan residents of village Mandev against the judgment dated 22-8-1989 whereby the learned Additional Sessions Judge, Bannu in Sessions Case No. 38 of 1988, convicted the two accused-appellants under section 302, P.P.C. And sentenced them each to life imprisonment and a fine of Rs.10,000 or in default to undergo further rigorous imprisonment for three years, for committing the murder of Motiullah Khan deceased in furtherance of their common intention in case F.I.R. No. 160 of Police Station Miryan, District Bannu registered on 19-7-1985. Umer Nawaz complainant has also filed Criminal Revision Petition No. 12 of 1989 for the enhancement of the sentences imposed upon the accused-appellants to those of death as also for the increase in the compensation.
2. The prosecution case in brief is that on 19-7-1985 at Degarvella while Umer Nawaz complainant alongwith Sardar Khan, Karim Dad and his son Motiullah in order to make ablutions for Degar prayers time started to go for their houses from their Chouk situate in the village Mandev and when reached near the vacant plot adjacent to the Chouk, Aftab Zaman and Iqbal Zaman accused- appellants alongwith Sher Afgan acquitted accused armed with Toppaks who were already sitting there stood up and simultaneously Sher Afgan directed Aftab Zaman and Iqbal Zaman to fire at Motiullah whereupon Aftab Zaman fired the first shot followed by a second shot by Iqbal Zaman with which Motiullah deceased was hit, fell down to the ground and died on the spot whereafter the accused decamped from the spot. Since they were all empty handed, they could do nothing. A Datsun was arranged and placing the dead body in the said Datsun Umer Nawaz went to the Police Station for report. Motive for the offence was a dispute over the lands. The occurrence,, was allegedly witnessed by Sardar Khan and his son Karim Dad Khan.
3. The report about the incident was recorded by Abdul Jalal Khan, S.H.O. At 6-30 p.m. By way of F.I.R.
4. (Exh. PA.) where upon a case under section 302/34, P.P.C. Against all the three accused was registered. After recording report, the Investigating Officer prepared the injury sheet and inquest report of the deceased and despatched the dead body to the mortuary for post-mortem examination while the 1.0. Himself alongwith the police party in the company of P.Ws. Umer Nawaz and Sardar Khan went to the spot. He searched the houses of the accused who were, however, not available. He visited the spot and prepared the site plan at the instance of the P.Ws. He took into possession blood-stained earth. He also recovered a pellet from the wall of the house of one Zar Wali and took the same into possession. Ali Jan, F.C. Brought from the mortuary a phial containing two pellets and shirt of the deceased, which he also took into his possession. He obtained warrants of arrest against the three accused. However, Sher Afgan accused was arrested on 28-7-1985 while Iqbal Zaman was so arrested on 17-11-1985. Before their arrest, proceedings under sections 87 and 88, Cr.P.C. Had also been initiated. After completing the investigation, challan was put in the Court of the Illaqa Magistrate against all the three accused under section 302/34, P.P.C. Read with section 512, Cr.P.C. Because Aftab Zaman accused-appellant had not been arrested by that time. Aftab Zaman,, on the other hand was arrested on 5-6-1987 by Said Ali Shah (P.W.15). Supplementary challan was accordingly submitted. After preliminaries, the Illaqa Magistrate sent the case to the Court of Sessions for trial. At the conclusion of the trial, the learned Additional Sessions Judge convicted the two accused-appellants and sentenced them as aforesaid. By the same judgment he, however, extended benefit of doubt to Sher Afgan accused and acquitted him of the charge.
5. Arguments of the learned counsel for the appellants and the learned Assistant Advocate-General for the State-respondent have been heard and record of the case has been examined.
6. The occurrence is reported to have taken place at Degar time on 19-7-1985. In the month of July, Degarwella comes round about 5-30 and 6-00 p.m. The report was lodged at 6-30 p.m. According to the doctor who examined the dead body at 8-30 p.m., the time that had elapsed between death and post-mortem examination was 4-5 hours. This would demonstrate that the occurrence had actually taken place round about 3-4 p.m. It would indicate that there was delay also in lodging the F.I.R. The prosecution witnesses are further belied by the medical evidence because according to the P.Ws. The deceased died there and E then and none of the P.Ws. Has stated that the deceased survived for certain moments but according to the doctor death had occurred within 5 - 15 minutes after the receipt of injuries.
7. The prosecution case is not only belied by improvements and exaggerations of the prosecution witnesses but from the conduct of the Investigating Agency as well. According to the First Information Report, Umer Nawaz while lodging the F.I.R. In the Police Station had also taken alongwith him the dead body of the deceased. According to the 1.0. After registration of the case he prepared the injury sheet and inquest report of the deceased and sent the dead body to the mortuary. Umer Nawaz and Sardar Khan P.Ws. Both are consistent on the point that the dead body had been taken to the police station. According to the doctor the dead body was brought to the mortuary by Ali Jan, F.C. This Ali Jan, F.C. Was produced as (P.W.1) at the trial and according to him he accompanied the dead body of the deceased from village Mandev to the Civil Hospital, Bannu.
8. In cross-examination he in unequivocal words admitted that he in the company of the 1.0. Had gone to village Mandev at Degarvella and the dead body was lying there on the spot. The perusal of the inquest report (Exh. P.C.) also suggests that the dead body was lying on the spot as is clear from the diagram prepared on the said inquest report. This would give the suggestion that as remarked above the occurrence took place at some earlier time and after making preliminary investigation, the report about the incident was recorded by the I. O. In Hasna v. The State 1983 P Cr.
9. L J 172 it was held that: "The irresistible conclusion therefore is that F.I.R. (Exh. P.D.) is not a genuine document and it was not prepared at the time and place it purports to have been written and that it was drawn up at the place of occurrence at or after 7-00 a.m. On 10th March, 1979 presumably after preliminary investigation. This conduct of the complainant and police creates various suspicions e.g. Perhaps it was an unseen murder. Had the witnesses seen the occurrence and identified the accused then the F.I.R. Would not have been recorded on the spot and the accused would have been charged at the police station. By drafting the F.I.R. On the spot and showing that the same had already been registered at the police station the Investigating Officer has shaken the faith of this Court in the investigation conducted by him. As a result of this discussion, it is held that the F.I.R. In the instant case is shady and the Court should be alert and should appreciate the ocular account with great care and caution.
10. From what has been stated above it w clear that the prosecution witnesses have made deviations and improvements from their earlier stand. Their presence with the deceased with some material object has not been explained. The time of occurrence is not in conformity with the time given by the Medical Officer, From the prosecution evidence in the shape of statement of (P.W.1) it has been established that the matter was incorporated in the F.I.R. After preliminary investigation, It has also been proved from the prosecution evidence I that Sardar Khan P.W. If not completely blind had a weak sight and even at the trial after that he had undergone an operation of the eyes after the occurrence according to his own admission, he was incapable of identifying the persons from a distance of twenty feet. One fails to understand as to how before undergoing the operation he was capable of identifying the accused whom he is consistently charging for the murder of the deceased. The F.I.R. Is not a substantive piece of evidence and once its credibility or authenticity becomes a question of debate, it turns into just a statement under section 161, Cr.P.C. But where from the conduct of the prosecution it is established that the F.I.R. Is recorded after preliminary investigation, then the entire evidence is to be looked with suspicion. It is the l fundamental principle of criminal jurisprudence that the accused charged is always presumed to be innocent unless he is proved guilty and that the proof of guilt is upon the prosecution and even if it is gathered from the record that the accused either lied or acted in a manner which may cause a suspicion about their guilt, the burden is on the prosecution because under the law accused facing trial is considered to be the favourite child of the law. In this sense the mere abscondence of the accused cannot be considered to be a corroborative piece ofevidence towards the guilt of the two accused-appellants.
11. Before we conclude we would like to point out that Muhammad Feroz Shah, Advocate who happened to be the counsel for complainant in criminal revision petition requested for adjournment of the case on the ground that he had questioned the acquittal of Sher Afgan accused in a criminal revision petition after having failed to persuade the State to file an appeal under section 417, Cr.P.C. And that the said criminal revision petition was fixed in motion before a learned Single Bench of this Court. In this connection attention of the learned counsel was invited to the criminal revision petition filed by him (No. 12 of 1989) wherein he has prayed for the enhancement of the sentences of the two accused appellants and that he should argue the fate of the case in hand, he was reluctant and from his attitude he insisted to get the case adjourned in any case. It would not be out of place to mention here that this Advocate put in two appearances; once on 21-2-1990 and then on 22-4-1990 in the Criminal Revision Petition (No. 13 of 1989) questioning the acquittal of Sher Afgan, before a learned Single Bench of this Court but nowhere he stressed or even referred the connection of that criminal revision petition with the instant criminal appeal. Still the defence was prepared to take notice of that Criminal Revision Petition and to afgue the matter but the learned counsel was stubborn to stress for adjournment. We, however, did not consider any valid reason to grant adjournment. Be that as it may since. We have formed our opinion that the prosecution has failed to establish this case beyond reasonable doubts against the two accused-appellants, Criminal Revision Petition (No. 12 of 1989) for the enhancement of their sentences, stands automatically dismissed. The learned counsel should try to establish the guilt of the acquitted accused before the concerned forum.