This criminal revision petition is directed against the judgment, dated 3-11-1990 of the Additional Sessions Judge I, Swabi, whereby he had acquitted respondents 1 and 2 of the charge under section 302/307/34 P.P.C.
2. Waris Khan complainant, petitioner herein, and his brother Mir Hawas Khan were returning to their house after `Asr' prayers on 12-6-1988 at 18-05 hours when they saw their father Shah Said present outside close to the house and preparing to ease himself. In the meantime they also saw Muhammad Sharif and Hassan Daraz sons of Muhammad Sher, respondents 1 and 2 herein, present there armed with Klashnikovs. The latter immediately started firing at the former. As a result of the said firing Shah Said was injured and died after a few moments, whereas the complainant and his brother escaped unhurt. Both the respondents murdered Shah Said to take revenge of their father Muhammad Sher, who was murdered by Umer Said, nephew of the deceased. Both the respondents absconded after the occurrence and were arrested on 21-2-1989.
After investigation they were sent up for trial before the Additional Sessions Judge, Swabi, who charged them under section 302/307/34, P.P.C. For committing the murder of Shah Said and for ineffectively firing at the complainant party in furtherance of their common intention. Both the respondents pleaded not guilty to the charge and claimed trial. The State produced 11 prosecution witnesses in all, out of whom petitioner P.W.8 Waris Khan complainant and P.W.9 Mir Hawas Khan are eye-witnesses of the occurrence.
3. Both the aforesaid eye-witnesses narrated the occurrence with some minor contradictions. Both the respondents in their statements under section 342, Cr.P.C. Denied the commission of the offence and stated that they had been false'; charged on account of previous enmity. They further stated that they had not absconded. They, however, did not make any statement on oath nor produced any defence.
4. It is admitted that both the eye-witnesses are real brothers and are sons of deceased Shah Said.
The motive alleged in the F.I.R., as also asserted during evidence, is previous blood feud enmity between the parties. Both' the eye-witnesses were not only closely related to the deceased as being his sons, but they were inimical towards both the respondents. No doubt, the testimony of a close relative can be accepted as good evidence provided it is corroborated by other independent evidence. As such, their testimony could only be believed provided. It found corroboration from other evidence recorded in the case.
5. It was asserted by the learned counsel for the petitioner that the testimony of both the eye- witnesses found corroboration from the medical evidence. He has stated that the deceased was present at point No.1 and both the alleged assailants were present at points Nos.5 and 6 quite opposite to the deceased and shots fired by both of them had hit the deceased on right and left sides, causing three entrance wounds and one exit wound. His contention was that since the deceased had sustained three entrance injuries, so the offence was committed by more than one person. A perusal of the statement of P.W.6 Dr. Qaim Shah, who performed autopsy on the dead body of Shah Said, will reveal that entrance wounds Nos.1 and 3 were of the same dimension, 1/4" x 1/4", and grazing injury at S. No.4 was 1" x 1/4". A close scrutiny of the three entrance injuries will clearly indicate that all the three injuries were of the same width. The possibility cannot be excluded that all the three injuries were caused with one weapon.
6. In so far as the question of common intention of both the respondents is concerned, the contention of the learned counsel for the petitioner was that the respondents being real brothers inter se, they had common cause to take revenge of the murder of their father and so they were both involved in the commission of the offence. This contention is neither borne out by any direct testimony nor by circumstantial evidence. The injuries caused to the deceased appeared to have been inflicted by one weapon which would mean that the assailant was a single person. This conclusion is further fortified by the fact that there is no evidence to prove that any particular injury was caused by any particular assailant nor is there any evidence that the empties recovered from the spot were fired from different weapons. The State also failed to produce any evidence to connect both the respondents with the commission of the offence or each one of them fired in furtherance of their common intention. Actually there is no evidence on the record to show that the offence took place as a result of firing by two persons.
7. The Investigating Officer had recovered three empty shells of 7.62 bore (Klashnikov) from point No.7 in the site plan, but the same were not sent for ballistic examination to find out whether they were fired from one weapon or more. No effort was made to prove that although all the three entrance wounds were of the same dimension, yet they were caused by more than one weapon.
8. It is also very strange that only three empty shells were recovered from the spot, whereas the evidence discloses that at least 15/20 shots were alleged to have been fired by both the respondents. If three empty shells could be recovered, it is not understandable where did the other empty shells vanish or why more empty shells could not be recovered from the spot. Apparently the empty shells were planted at the spot to give corroboration to three entrance wounds.
9. Both the eye-witnesses have deposed that they were returning to their home after offering `Asr' prayers and at that time their father came out and the assailants were also present there and they started firing at the latter. The narration of these circumstances would indicate that the eye- witnesses, appeared to be chance witnesses.
10, There is a distance of only 8 paces between the place of the deceased and the place of the assailants and there was a wall just close to point No.1, where the deceased was present at the time of attack on him. Bullets fired from such a short distance should have either pierced the wall or must have struck into it but no evidence to that effect was produced.
11. Both the eye-wtinesses have stated that their father had fallen into the closely water channel after receiving the injuries and they went to police station to report the occurrence, but when they came back, the dead body was lying on a `cot'. The Investigating Officer did not recover any blood from the spot or around it. Although according to the testimony of the eye-witnesses, the victim had fallen to the ground, yet it is very strange that not even a drop of blood was found from or around the spot. This circumstance has also cast a strong shadow of doubt over the actual place of occurrence. There are strong grounds to believe that point No.1 in the site plan was not the actual place of the occurrence.
12. The aforesaid discussion would clearly indicate that the testimony of the eye-witnesses did not find any corroboration from the other evidence recorded in the case. Their testimony was neither supported and corroborated by the medical evidence nor the circumstantial evidence. Both the eye--witnesses being closely related to the deceased as well as inimical to the respondents, their testimony could be believed if it had been corroborated by other evidence. It has not succeeded in inspiring any confidence.. The circumstance of vicarious liability has also not been proved.
13. The State had failed to prove the guilt of the respondents beyond any reasonable doubt. They were rightly acquitted of the charge by the learned Additional Sessions Judge. The State also did not file appeal against the acquittal of the respondents. It has been held in the case of Feroze Khan v. Captain Ghulam Nabi Khan and another PLD 1966 SC 424, that:-- "In case of revision petitions from acquittal, where the State has not thought fit to challenge the acquittal by appeal, the Courts would be very slow to interfere, unless non-interference would involve an endorsement of a patently unfair order, or one which leads to miscarriage of justice. If the view taken by the Courts below is reasonably possible on a consideration of all the facts and circumstances of the case, then the entertainment of a feeling, that an alternative view of the evidence might have been taken, would not justify the superior Court to setting aside an order of acquittal. The governing consideration must always be whether, in relation to the proved facts and circumstances, justice has been done, in accordance with law.--- Drawing support from the aforesaid judgment I decline to interfere with the order of the learned Additional Sessions Judge impugned in this revision. The same is without any merit and is dismissed.