' QAZI MUHAMMAD FAROOQ, J.---This is an appeal preferred by Islam Badshah son of Khan Badshah, aged about 33/34 years, Khan Badshah son of Shah Nazar, aged about 65 years and Niaz Badshah son of Gul Bazar, aged about 60/62 years, residents of village Sarubi, District Karak, against the judgment dated 19-3-1991 of the learned Sessions Judge, Karak, whereby they were convicted and sentenced after their trial for the murder of Mst. Bibi Maryam and murderous assault on Mst. Amal Jana. They were sentenced under section 304(1), P.P.C. To imprisonment for life and to pay a fine of Rs,5,000 each or in default to undergo one year further R.I. Each and under section 308, P.P.C. To two years' R.I. Each and a fine of Rs,3,000 each or in default to suffer three months' further R.I. Each. The judgment stipulates that the sentences of imprisonment shall run concurrently and a sum of Rs,10,000 and a sum of Rs,5,000 out of fines, if realised, shall be paid to the legal heirs of Mst.
Bibi Maryam and Mst. Amal Jana respectively.
2. The occurrence giving rise to the case against the appellants and their absconding co-accused Umar Badshah took place at 5-00 p.m. On 26-7-1989 in village Sarubi distant 18/19 kilometres from Police Station Sabir Abad and the F.I.R. Was lodged on the same day at 11-30 p.m. By one Umar Gul, brother-in-law of Mst. Bibi Maryam deceased, and it was recorded by Haq Nawaz S.H.O. (P.W.10).
3. The prosecution version of the occurrence is that on the fateful day the complainant had invited his co-villagers to a `Kliairat' party, arranged in connection with the circumcision ceremony of his grandsons. Hukam Gul and Islam Gul sons of Gul Raz came to the complainant's house to participate in the `Khairat' party duly armed and sat on the cots lying in the `Baithak'. They were followed by Khan Badshah son of Shah Nazar, Niaz Badshah son of Gul Bazar, Umar Badshah son of Niaz Badshah and Islam Badshah son of Khan Badshah who were also fully armed. They too sat on the cots. Some time thereafter, Khan Badshah, Niaz Badshah, Umar Badshah and Islam Badshah pounced upon Hukam Gul and they started grappling but the complainant and others interceded and separated them. Hukam Gul and Islam Gul started towards the courtyard of the complainant's house on which Islam Badshah and Umar Badshah fired one shot each at Hukam Gul from behind but he escaped unhurt and the shot fired by Islam Badshah hit Mst. Bibi Maryam who had come out of the house on hearing the noise and shot fired by Umar Badshah hit a minor girl named Amal Jana. Thereafter, Umar Badshah, Islam Badshah, Khan Badshah and Niaz Badshah bolted away to their house.
4. Mst. Bibi Maryam in an injured condition was taken to the police station and from there to the Rural Health Centre, Sabir Abad where at 12-30 {{PAGE NOT SCAN}}
5. Placed on the front of left elbow-joint and the left forearm over an area of 2" x 1".
(2) Exit wound 1/4" x 1/4" over the lateral side of the left elbow-joint.
(3) Two exit wounds each 1/4" x 1/4" on the lateral side left forearm 2" below the elbow-joint.
(4) Three entrance wounds each about 1/4" x 1/4" with scorched margins over an area of 2" x 1/2" on the medial side of left forearm 4" above the wrist-joint.
(5) Three exit wounds each about 1/4" x 1/4" over an area of 2" x 1" on the back of the same arm, 4" above the wrist-joint.
(6) Seven entrance wounds each about 1/4" x 1/4" with scorched margins over an area of 6" x 5" on the left side back of the chest. Horizontally 2" from the left interior angle of the left shoulder bladder and medially r from the mid line.
(7) Entrance wound 1/4" x 1/4" on the front of the right thigh, 1" from the knee-joint.
' In the opinion of the doctor the injuries were caused by firearm. The result of injuries 1 to 5 was kept after X-Ray while injury No,6 was grievous in nature and injury No,7 was simple. Probable time was fresh.
' He also examined Abdul Wajid son of Sher Ahmed on 22-6-1985 at 2-45 a.m. And found the following injuries on his person:-- (1), Abrasions 1/4" x 1/4" with Hale ring margins over a contusion, 1" x 1/4" on the left side back of the chest, 1-1/4" below the interior angle of the left shoulder bladder and 4" from the mid line.
(2) Abrasions 1/4" x 1/10" on the left lumber regions, 1-1/2" from the midline.
(3) Abrasion 1" x 1/10" on the left lumber region, 4" below the castle margins and 4" from the midline.
' Injury No, (sic) was caused with fire-arm and the rest by blunt means.
4. Dr. Perveez Akbar Khan Medical Officer, District Headquarter Hospital, Abbottabad conducted the post-mortem, examination of the dead body of Mehboob Shah s/o Ghazan Shah on 23-6-1985 at 10-00 a.m. And found the following:- External examination:
(1) Firearm grazed wound on the top of left shoulder, 2" x 1/4" skin deep.
(2) Firearm entry wound on the front of chest 3" above the left nipple, 1/4" x 1/4". Firearm exit wound in the left scapulary region 1/2" x 1/2" in the same level.
(3) Firearm entry wound on the front of chest in the supera strenal notch 1/4" x 1/4".
Internal examination.
' Anterior 3rd left inter costal and posterior 5th left inter costal muscles, left plaureae, lyranx and trachae, left lung, left pulmonary blood vessels, oesophagus were found injured. The death in his opinion was caused due to injury to left lung, trachae and oesophagus. The probable time between injuries and death was about 38 to 40 hours and between death and postmortem 1-1/2 hours.
5. Zahir Shah ASI (P.W.16) conducted investigation in the case. He recorded Murasila Exh. PA/1 in RHC Havelian which was sent to the Police Station Havelian where it was incorporated into FIR Exh. PA. He prepared injury sheets in respect of Ilyas (Exh.P,W.16/1), in respect of Mehboob Shah injured (Exh.P.W.16/2),in respect of Shabbir (Exh.P.W.16/3) and in respect of Waris Khan (Exh.P.W. 16/4). He also prepared inquest reports in respect of Waris Khan deceased (Exh. P.W. 16/5), Shabbir Khan deceased (Exh. P.W.16/6). He arrested Abdul Wajid accused from his house along with .12 bore shotgun and three cartridges and all these articles were taken into possession vide recovery memo. Exh. P.W.3/2. Muhammad Zaman accused was also arrested by him. He also took into possession licence No,6619 produced by Said Ahmed vide recovery memo. Exh. P.W. 16/8. He also recovered from the spot empties Exhs.P.26, P.27, P.28, P.29, P.30, P.31 and P.32 vide recovery memo.
Exh. P.W.11/1. He recovered from the spot bloodstained earth Exh.P33, pebbles and earth from point No,4 (Exh.P36). He also took into possession one shirt Exh.P1, one jacket Exh.P2. He also recovered shotgun Exh.P3, 3 cartridges Exh.P4 and licence Exh.P5 in presence of marginal witnesses. He also recovered shotgun Ex.P.W.3/4 from Abdul Wajid accused along with one cartridge Exh.P7 and 3 other cartridges Exh.P8 in presence of marginal witnesses. He also recovered revolver Exh.P26 on the pointation of Abdul Wajid accused. He produced the accused before the Magistrate for confession but no confession was made.
6. Bakhtiar Ahmed ASI (P.W.1) incorporated the Murasila Exh.PA/1 into FIR Exh.PA. Imtiaz Khan ASI (P.W.3) is marginal witness of recovery memos. Exh.P.W.3/1, Exh.P.W.3/2, Exh.P.W.3/3 and Exh.P.W.3/4.
Farid Muhammad F.C. No,695 (P.W.4) brought sealed bottles Exh.P9 containing pellets Exh.P10, Namda Exh.P 11 and cardboard Exh.P.12 along with shirt Exh.P.13, jacket Exh.P.14 of Shabbir Khan deceased along with sealed bottle Exh.P.15 containing pallets, shirt Exh.P.16, Shalwar, Exh.P.17, jacket Exh.P.18 of Waris Khan deceased, a sealed bottle Exh.P.19, containing pellets etc. Jacket Exh.P.20, shirt Exh.P.21, Shalwar Exh.P.22 of Muhammad Ilyas, shirt Exh.P.23, banyan Exh.P.24, of Mehboob Shah and produced them before the Investigating Officer who took them into possession and sealed into parcel vide memo. Exh.P.W. 4/1. Abdul Latif IHCPS Cantt., Abbottabad prepared the inquest report of S. Mehboob Shah Exh.P.W.2/2. Abdul Sattar FC No,473 (P.W.7) is marginal witness to recovery memo.
Exh.P.W.7/1. Malik Aman S.I. (P.W.8) obtained warrant of arrest in respect of Mushtaq accused and applied for proceedings under section 87, Cr.P.C. He sent the blood-stained clothes vide Exh.
P.W.8/4 to the Chemical Examiner for his report. Likewise he despatched the empties recovered in this vide Exh. P.W.8/5 to the Arms Expert and the report received is Exh.P.W.8/6. Muhammad Nazir (P.W.9) is marginal witness to recovery memo. Exh.P.W.3/1. Hussain Khan son of Hasham Ali (P.W.11) is marginal witness-to recovery memos. Exh. (P.W.11/1, Exh.P.W.11/2, Exh.P.W.11/3. Muhammad Irshad FC No,57 (P.W.12) is marginal witness to recovery memo. Exh.P.W. 7/1. Muhammad Ilyas complainant (P.W.13) reiterated the story as narrated in the Murasila and charged the accused-appellants for murder of his brother Shabbir, Waris and one Mehboob Shah and for injuring him. Alif Din son of Umar Din (P.W.14) supported the version given by Muhammad Ilyas in his report. Farooq Shah son of Ghazan Shah (P.W.15) also supported the version given by Muhammad Ilyas in his report.
7. Learned counsel for the appellants highlighted the discrepancies and contradictions in the ocular evidence vis-a-vis the medical evidence. He referred to the statement of Farooq Shah P.W.15, who ip the cross-examination had admitted that he pointed out the distances at the time of the preparation of the site plan. He stated that Shabbir and Waris Khan deceased were fired at by the assailants from a distance of 10/15 paces while Ilyas and Mehboob Shah were fired at from a distance of 15/20 paces. The medical report of the deceased and the injured show scorching margins around the entrance wounds which are only possible from a distance of 1 to 3 feet, whereas in the instant case the distance between the accused and the victims comes from 25 to 45 feet in which event the scorching around the wound is not at all possible. He also referred to the site plan and pointed out that the distance between Shabbir deceased and Mushtaq accused since dead i,e, points 1 and 5 is 10 paces, between Shabbir and Wajid absconding accused i,e, points 1 and 6 is 20 paces, between Shabbir and Sher Ahmed appellant i,e, points 1 and 7 is 25 paces and between Shabbir and Muhammad Zaman appellant i,e, points 1 and 8 is 26 paces. While the distance between Waris Khan deceased and Mushtaq i,e, points 2 and 5 is 6 paces, between Waris Khan and Wajid i,e, points 2 and 7 is 18 paces, between Waris Khan and Muhammad Zaman i,e, points 2 and 8 is 18 paces, likewise distance between point 3 Ilyas injured complainant) 5 to 7 paces, points 3 and 6 is 18 paces, 3 and 7 is 26 paces and 3 to 8 is 23 paces. The distances between point No,4 (Mehboob Shah) deceased are almost similar to point No,3. The distances as given in the site plan are almost similar and correspond to the distances as given by the eye-witnesses. It has further been admitted by the P.W.14 Alif Din and P.W.15 Faropq -.Shah that the site plan was prepared at their instance. Alif Din P.W. 14 in his cross-examination deposed that Shabbir was fired at from a distance of 13/14 paces while Waris Khan from a distance of 4/5 yards and Mehboob Shah and Ilyas were fired at from a distance of 24/25 paces. According to NJ.Modi if a firearm like shotgun is discharged from a distance of not more than 3 feet and a revolver or pistol discharged within about 2 feet, then it will cause blackening. Scorching in the case of the latter firearm is observed within a few inches, while some evidence of scorching in the case of shotgun may be found even at 1 to 3 feet". Therefore, testing the evidence at the touchstone of the aforesaid criterion it would be found that the eye version given by the witnesses is not compatible to medical evidence and does not fit in the framework of the aforesaid criteria hence there arises a serious doubt in the case, the benefit whereof has to be given to the appellants. It was further contended that shotgun No,39467 was recovered from the house of Abdul Wajid while another shotgun No,93935 was recovered from the house of Muhammad Zaman and one .32 bore revolver No, FF 50111 was recovered on the pointation of Abdul Wajid from his house which was produced by his mother. Seven .12 bore crime empties matched with the shotgun No,39467 while two crime empties matched with the shotgun No,93935 while one crime empty did not match with either of the shotguns which would indicate that besides the two shotguns another shotgun was also used which was neither recovered nor referred to by the eye-witnesses. This would also create doubt in the prosecution case. He argued that accused Sher Ahmed who is aged about 70/72 years according to the site plan, was at point Nb.7 which is on the roof, while he has been attributed firing from the courtyard by the eye-witness P.W.13 Muhammad Ilyas in the cross-examination has categorically stated that no firing was made from the roof although a .12 bore empty from point D which is adjacent to point No,7, has been recovered. He submitted that the finding of guilt against the accused cannot be based on probabilities but should rest surely on the evidence. Since prosecution case is not free from doubts, therefore, the benefit of doubt arising on any material point must be given to the accused.
8. On the other hand the learned counsel for the complainant submitted that the occurrence has taken place in the broad daylight and the assailants were correctly identified by the eye-witnesses.
Injuries on P.W.13 Muhammad Ilyas are proof of his presence at the spot and his relationship with the deceased would not make his account blemish. He submitted that the discrepancies in giving the distance between the accused and the victims are not of any significance and they can be overlooked as it cannot be expected that the eye-witnesses would give actual distances. He referred to certain authorities wherein it has been held that the minor discrepancies in the prosecution case are inevitable as every body has his own way to narrate about the events. He supported the judgment/order of the learned Sessions Judge and submitted that the learned trial Court after thorough appreciation of evidence has rightly convicted the appellants.
9. The learned Assistant Advocate-General almost adopted the arguments of the learned counsel for the complainant and supported the conviction of the appellants.
10. We have heard the learned counsel for the .Parties and have gone through the record of the case. We tend to agree with the contentions of the learned counsel for the appellants. The moot point in the case is whether the ocular evidence is consistent and compatible with the medical evidence . From the ocular, evidence on the record it is established that the site plan was prepared at the instance of the two eye-witnesses i,e, P.W.14 Alif Din and P.W.15 Farooq Shah who in their deposition before the Court have also admitted that the same was prepared at their instance. The distances given in the site plan mostly correspond to the distances given in their Court statements.
The range from which the firing has taken place vis-a-vis the medical evidence we find them incompatible with each other. Most of the injuries sustained by the deceased had scorched margins which are not possible if the firing has been done from the distances as given by the P.Ws.
Since the scorching or blackening can only be possible if the victim is fired at from a distance of 1 to 3 feet, but in the instant case the distances come to 25 to 45 feet. As the ocular evidence is highly inconsistent with the medical evidence, therefore, reasonable doubt arises in the mind of Court, the benefit of which has to be given to the appellants.
11. According to the Arms Expert's report one .12 bore crime empty recovered from the spot was not found to have been fired by the two shotguns recovered from the accused which would show that besides the two recovered shotguns one another shotgun has been used which has not been recovered. Absconding accused Wajid is stated to have two weapons but as he is not before us, therefore, we would refrain to comment on his role.
12. We are not convinced by the motive set up by the prosecution. Such an incident which has claimed three lives may not have been committed on a farfetched and inadequate motive which has no direct bearing and does not provide a cause to nourish grudge, the actual motive seems obscure and shrouded in mystery.
13. Since there are reasonable doubts created in the prosecution version, therefore, by allowing the benefit of doubt to the appellants we would accept this appeal, set aside the conviction and sentences of the appellants and acquit them of the charges. They should be set at liberty forthwith if not required in any other case.