' SALEEM AKHTAR, J---These three appeals by the leave of the Court were filed by the complainant Noor Hasan against the respondents, who were accused of committing murder of Nasib Gul, Sarwan Shah, Wazir Hasan and Muhammad Ruk Shah. The respondents had absconded and were put to trial whenever they were arrested. Eid Akbar and Noor Akbar respondents in CrA. 101/1992 were arrested on 24-2-1985. The learned trial Court acquitted them. Sardaraz and Piyavi respondents in CrA. 102/1992 were arrested on 11-4-1987 and were tried by the Sessions Judge, Kohat who acquitted them by judgment dated 4-7-1988. Likewise, Muhammad Shafiq and Gul Baz, respondents in CrA. 103/1992, were arrested on 15-9-1989 and 25-9-1989 respectively. The learned Sessions Judge by judgment dated 13-6-1990 acquitted them. As the State did not file acquittal appeal, the complainant filed three revision petitions against the judgments of the learned Sessions Judges. All these three revision petitions were dismissed by a consolidated impugned judmgent of the High Court.
2. The facts disclosed in the FIR are that the four decesased alongwith Noor Hasan P.W.9 (complainant), Muhammad Hasan P.W.10 and Muhammad Saleh were travelling in the Pick-up No.PRG 493 on 11-12-1984. It was driven by Wazir Hasan son of the complainant. When they reached at Bilyamina Adda Taveezi, these three P.Ws. Got down from the pick-up to ease themselves and the remaining occupants which included certain passengers who were to be taken to Bilyamina remained on it and Wazir Hasan took them to that place and on return was to pick up these P.Ws.
After ten minutes they saw the Pickup returning back and further observed that the accused Sardaraz, Piyavi, Gul Baz and Shafiq, respondents in these appeals armed with Topaks were standing on the northern side of the road. Eid Akbar and Noor Akbar, who were also armed, were standing on the southern side of the road. When Pickup reached there, they started firing on it killing Muhammad Rukh Shah, Sarwan Shah, Wazir Hasan and Nasib Gul. The accused then ran away from the scene. Motive attributed was that about six or seven months back in a "Chugha" party Nawab Gul's nephew and one woman Zaila daughter of Nawab Khan were injured and for this act the accused were the suspects. It was further stated that Daulat Khan, Umeed Khan and Muhammad Din had teased the ladies of accused Sardaraz and it was to avenge that they have killed the complainant's cousin. The respondents had denied the incident. As stated earlier there were three sets of trial of two respondents each and all of them have been acquitted by all the three different trial Judges. The High Court has confirmed those judgments.
3. Leave was granted in the following manner:-
4. "In these petitions against acquittal in same murder case wherein four persons were killed on the petitioner's side, the main thrust of the contention advanced against the respondents/accused persons is of three dimensions. One, that the reasons for acquittal like those: that the F.I.R. Was late; that it was an unwitnessed occurrence because the two brothers who claim to be eye-witnesses were not harmed; while, according to prosecution version they should also have been killed; and further, that the investigation was not above board, are too general to have been accepted as `material' for being acted upon so as to reach the verdict of not guilty. The definition, of proof in the Evidence Act is relevant in this behalf. The second direction is towards well-known aspects in an appeal against acquittal; namely, that it is based on misreading and non-reading of evidence. The learned counsel brought to our notice some misreading of substantial character. The third direction is prolonged abscondence by the accused."
4. The learned counsel for the appellant contended that the evidence has been misread and undue importance has been given to the alleged delay in lodging the report and also the fact that if the father and uncle of Wazir Hasan, who are the eye-witnesses, were present at the scene of occurrence, it is unbelievable that the accused would have spared them. The learned Sessions Judge by judgment dated 12-1-1987 taking into consideration all these contentions and the evidence on record concluded as follows:- "I have gone through the record of the case with the assistance of learned Public Prosecutor assisted by learned counsel for the complainant and the learned defence counsel. It is in the statement of P.W.2 Kashmir Khan that he came to know of the occurrence at Deegarvela. It was winter season and at that time Deegar falls round about 3/1-2 or 4 p.m. It means that the offence was committed earlier than this time because he had been at Hangu and when he came back to his village he was informed of the same. It is also in the statement of complainant and P.W.
Muhammad Hasan, his brother that they started from Hangu for their village at about 3 p.m. Village Taweezi Banda is at a distance of 8/9 miles from Hangu and in the Datsun/Pick-up this distance can be covered in about half an hour. So the occurrence took place before 4 p. m. P.W. Shah Husain stated in the witness-box that Complainant Noor Hasan visited the Police Post in the Suzuki and narrated the occurrence to the I.O. There but the I.O. Did not incorporate his version in the Police Post and accompanied the complainant in his Pick-up to the spot. What can be gathered from this act of the I.O. Is that he wrote down the Murasila at the spot after the examination of the spot and the dead bodies. So the question of consultation and deliberations in the meanwhile cannot be ignored. Delay is the natural outcome of this process. In the instant case the investigation was conducted in a very illegal manner. Phoptographs of the Pick-up were not taken into custody by the I.O. Although one of the I.Os. Namely Abdul Mutlib Khan admitted in the cross-examination that he took the photographs of the Pick-up and about Muhammad Akram and Sarwar Khan he further stated that he interrogated them who did not charge the present two accused and stated that they had already been examined by the I.O. Amir Nawab Khan, ASI, but a perusal of the record shows that their statements are not present on the file. The role given to the present accused was that they stopped the Pick-up which was then targetted by them and the absconding accused but the record shows that its front pane was intact while the panes on the two doors were broken meaning thereby that the firing was not made by these two accused but by the absconding accused, if any. In the FIR it is mentioned that all the accused started firing indiscriminately but during their cross-examination of the I.O. It came to light that the recoveries were made from points Nos.3, 4 and 5 only and these points were attributed to the absconding accused Shafiq, Gulbaz and Sardaraz. It is also not believable that why the father and uncle of deceased Wazir Hasan were spared by the accused with whom they had direct enmity over the landed property and ladies. Medical evidence reveals that out of the four deceased, three received injuries from their right side and one from the left side but that too was possible because it was on such part of the body which was mobile. It shows that the firing was made from right side of the Pickup.
Abscondence per se is not sufficient to declare a person accused of the offence."
' In CrA. 102/1992 the learned Sessions Judge, Kohat by judgment dated 4-7-1988 considered the evidence on record and considering whether eyewitnesses, namely Noor Hasan P.W.8 and Muhammad Hasan P.W.9 were present at the time of occurrence observed as follows:-- "P.W.8 Noor Hasan lodged report Exh.PA/1 in respect of the present occurrence. According to him, he had gone to Hangu to make some purchases. At about 3-00 p.m. He alongwith P.W. Muhammad Hasan. P.W. Muhammad Salih, deceased Muhammad Ruksha, Sarwan Shah, Naseeb Gul and Wazir Hasan started for their village in a Pick-up which was being driven by his son Wazir Hasan deceased. He further claimed that when they reached the Adda in the corner of Taweezi Banda, he alongwith P.Ws. Muhammad Hasan, Salih Muhammad got down for urination. Wazir Hasan deceased drove the Pick-up towards village Balyamina in order to drop some passengers. When they returned after ten minutes they were stopped by the accused who were standing in a group of two each on the left side of the road and in its front, encircled them and started firing at them. As a result of their firing deceased Wazir Hasan, Sarwan Shah, Naseeb Gul got hit and fell in the Pick- up whereas Muhammad Ruksha went ten paces from the Pick-up when he was fired at, got hit and fell to the ground. This version of the eye-witness P.W. Noor Hasan is not supported by the medical evidence and the recoveries made from the spot. According to the medical report, out of the four, three deceased received injuries on their person from the right side. This fact has been admitted by the Doctor P.W. Muhammad Younas. In his cross-examination he stated that the assailants had made murderous attack from the right side of the deceased. As regards injuries on the person of the deceased Naseeb Gul, P.W. Dr. Muhammad Younas stated that injuries being on the mobile part of the body could be caused from the right side as well as from the left side... This witness has further alleged indiscriminate firing of all the six accused charged in the F.I.R. So much so P.W.
Muhammad Hasan claimed 50/60 shots by the accused i.e. Acquitted accused, accused facing trial and absconding accused at the deceased but it is in the statement of the I.O. That the recoveries have only been effected from points Nos.3, 4, 5 where Shafiq, Gulbaz absconding accused and Sardaraz accused facing trial were allegedly present. The motive for the offence as claimed by the witness is that accused suspected complainant P.W. Noor Hassan and his brother P.W. Muhammad Hasan for outraging the modesty of the ladies in the jungle. It is not understood as to why these two witnesses who had direct enmity with the accused were spared by the accused. I do not agree with the arguments of the learned counsel for the prosecution that they being at a distance of 70/80 paces from the accused were not seen by them. If the said P.Ws. Who claimed to have witnessed the occurrence could not be seen by the accused at that time (how could they see the occurrence)."
' Besides this the learned Judge was also impressed by the contradiction in the statements of Noor Hasan and Shah Hussain with regard to the lodging of the report. She further noted .The delay in lodging the report, because occurrence took place at about 4 p.m. Whereas the report was made at 7-30 p.m and no reasonable and convincing explanation was given for such a delay.
5. In CrA 103/1992 the learned Sessions Judge by his judgment dated 13-6-1990 was impressed by the fact that P.W.4 had stated that he and other persons had purchased articles and goods from the market, but they were neither available in the Pick-up nor the P.Ws. Produced them before the investigating officer who had reached the scene of occurrence. The learned Judge has also taken note of the delay in filing the FIR and further that in the background of the enmity the natural course would have been that the accused would not have spared these eye-witnesses.
6. The learned counsel for the appellant contended that the eyewitnesses got down at Balyamina Adda and went a bit farther to urinate and while they were at a place where it was depression in the ground, they merely saw the accused respondents firing who did not notice them and they kept themseleves hiding there. All these facts seem to have been stated to improve the case and to meet the point that if they would have been present, respondents would not have spared them.
In the present appeals the appellant has challenged the acquittal of the respondents. The principles applicable in acquittal appeal have been laid down in Ghulam Sikandar and another v Mamaraz Khan and others (PLD 1985 SC 11). The contentions raised by the learned counsel in which he has tried to explaint the delay, that the eyewitnesses were not visible and that the respondents were seen firing and killing deceased are all such contentions which have been considered by the learned Judges of the trial Court at well as by the learned Judge in Chamber of the High Court and have met by reasonable grounds and arguments. There is no case of misreading or non-reading of any evidence. What the learned counsel contends can at best be said that it is possible that such an inference from evidence could be drawn, but this can hardly be a ground for setting aside the order of acquittal. We therefore find no ground for interference with the impugned judgment and dismiss these appeals.