On 21-11-1982 Mst. Bulkhey Jana charged Jannat Meer, Bannogai and Sadiqullah for direct firing at the deceased, her husband and charged Zardad, Salah Khan and Daraz Khan for firing at the villagers for the purposes of warding off them to come for rescue to the spot. Zardad Khan was arrested on 27-11-1982 while the other five accused made themselves fugitive from law. Zardad Khan had faced a trial and the said trial was also ordered to be read as evidence against the absconding co-accused under section 512, Cr.P.C. Sadiqullah was arrested in police raid on 2-4- 1987 and after his arrest both of the accused-respondents were put to face a joint trial in which the learned Sessions Judge, Bannu passed the impugned judgment of their acquittal whereagainst the complainant filed instant revision after having failed in her attempt before the District Magistrate to move the Provincial Government to file appeal against their acquittal.
After hearing the learned counsel for the parties and going through the evidence on record and carefully reading through the judgment of the learned trial Court it is remarked that as and when some of the accused particularly main accused are absconding and some of the accused charged for vicarious liability face a trial and the learned trial Court intends to extend benefit of doubt to the accused facing trial, he must employ a guarded language and need not make sweeping statement and observation like that the eye-witness had not seen the occurrence, that the prosecution had failed to prove the case beyond shadow of doubt etc. Etc. He should rather say that from the evidence on record prosecution does not appear to prove its case to the hilt or that it failed to bring home the charge to the accused beyond all reasonable doubt. About the eye- witnesses, it should better be said that the eye-witness account qua accused on trial was not found confidence inspiring or that the ocular evidence did not receive sufficient corroboration.
3. In the facts and circumstances of this case the sweeping remarks and observations made by the learned trial Court were found unwarranted likely to prejudice the case of the prosecution qua co- accused. Herein the learned trial Court had found it strange that Sadiqullah, Jannat Meer and Bannogai had opened fire at the deceased but the bullocks and Meer Khawas P.W. Were not hit, although they were in the same firing range. He failed to appreciate by the term of firing range.
Meer Khawas P.W. Was shown at point No.3 in the South--East while the deceased was shown at point No.1 in the North-West at a distance of 6 Karams. Accused have been shown at points Nos.5, 6 and 7 towards the North-East. Point No.1 and point No.3 were not, therefore, to fall in the firing range of points 5, 6 and 7. The observation of the learned trial Court appears to be palpably wrong in this context. The learned trial Court had further wrongly observed that the two eye-witnesses had contradicted each other and as such concluded that they had not seen the occurrence. Meer Khawas (P.W.10) had stated that Sadiqullah, Jannat Meer and Bannogai had fired at the deceased, simultaneously some three shots and that he had not seen other accused around at the scene of occurrence. This is an omission and on this score the learned trial Court could have acquitted Zardad accused and not that he should have given the benefit of the said omission as to order the acquittal of co-accused Sadiqullah.
4. Learned trial Court has blamed the prosecution for delay in the registration of the case since the occurrence took place at `Dopehr wela' whereas the report was made at 2-30 p.m. At the Police Station at a distance of 5-6 kilometres from the place of occurrence under observation that no explanation was forthcoming about the delay. On the other hand, it was found in the judgment of the learned trial Court that the complainant was put to a lengthy cross-examination and she admitted that she went on foot and she reached the Police Station at `Peshee wela'. One may think that this is perhaps somewhat a reasonable explanation for delay. In fact the tenor of the judgment favours the view that the complainant has furnished a reasonable explanation for the delay in the F.I.R.
5. Wound No.8 is on the right forearm of a size of 3" x 1" each laterally 3" each below the elbow joint.
About the said wound the doctor has stated that this wound could be probably caused from above downward. It was accordingly observed that this has falsified the version to the extent that the deceased was fired at from behind when he was ploughing. This injury was caused to the deceased on right hand who must have his hand on the handle of the plough while ploughing. In that situation firing from behind can possibly cause injuries at the said locale. This instance should not have been used by the learned trial Court to falsify the eye-witness account. The conclusions drawn in paragraph 6 were thus not found justified that the two P.Ws. Have not seen the occurrence and they have deposed against the accused being the close relation of the deceased.
6. A word about abscondence. Accused Sadiqullah was apprehended by Sikandar Khan (P.W.3) in a raid but the said incriminating circumstance was not put to the accused during his statement recorded under section 342, Cr.P.C. The long abscondence of 4 years was explained by the accused that he was a poor man and he had, gone to Karachi to earn his livelihood. This explanation may not be sufficient.
7. In view of the foregoing discussion this Court holds that there could be possibly extgnded a benefit of doubt to Zardad accused-respondent and this Court would, therefore, dismiss the revision petition as against him. As far as Sadiqullah accused-respondent is concerned this Court cannot uphold his acquittal in view of the evidence on record. The judgment of the learned trial Court was also not found spelling correct reasoning and conclusions to justify his acquittal.
Accordingly, this Court accepts the revision as against the acquittal of Sadiqullah and orders his retrial. Since he has remained on bail throughout, he shall continue on bail but shall furnish fresh, bonds before the trial Court.