MUHAMMAD KHIYAR J.-Muhammad Ishaq son of Pathi Mullah Jan aged about 21/22 years resident of village Hathian, Police Station Lund Khwar, District Mardan was tried for the charges under sections 302/307 PPC. He was convicted and sentenced under section 302 PPC on two counts for the murder of Ghulam Qadir and Muhammad Yunis Ali and sentenced to imprisonment for life and a i.e of Rs. 15000/- on each count or in default to suffer further R.I. For six months on each count. The i.e on recovery was ordered to be paid to the legal heirs of both the deceased in equal share as compensation under section 544-A Cr.P.C. For attempting at the lives of Mst. Nusrat, Shahid Ali and Amjad Ali, the accused Muhammad Ishaq was convicted under section 307 PPC on three counts and sentenced to undergo imprisonment for i.e years R1 and a i.e of Rs. 2000/- on each count. In default of payment of i.e on each count he was to suffer further R1 for six months. The sentences were to run concurrently. The accused was given the benefit of Section 382-B Cr.P.C. The convict/ appellant has challenged his conviction and sentence awarded to him by the learned Sessions Judge Mardan, vide judgment dated 6.8.1992 by filing this appeal in this Court.
2. The prosecution story as disclosed at the trial is as follows:-
3. On 19.2.1990 at 21.15 hours, Shahid Ali (PW6) son of Ghulam Qadir deceased and brother of Muhammad Yunis Ali deceased along with his second brother Amjad Ali, his sister Mst. Nusrat (PW.7) and his mother Mst. Wazirzadgai were present in their house when at about 9.10 P.M. He heard the report of fireshots near his house. After few minutes of the report of fireshots some body knocked at the door of the house whereupon Ghulam Qadir deceased went to the door, opened it and saw the accused Muhammad Ishaq armed with 'Klashnikov' who fired with which Ghulam Qadir deceased and Muhammad Yunis Ali deceased were hit and died on the spot while Mst.
Nusrat was injured. The accused decamped after the occurrence. The occurrence was witnessed by PWs Amjad, Mst. Nusrat and Wazirzadgai besides Shahid Ali P.W. The accused was identified in the light of bulbs. The motive for the occurrence was that a relative of the complainant, namely, Aziz Ahmad was charged for the murder of the brother of the accused and injuring their father. The report of occurrence Ex: PA/1 was made by Shahid Ali (PW6) on the same night at 21.50 hours to Murtaza Khan AS1 (PW8) who was on gusht in the village. After recording the report Ex:PA/l it was read over to Shahid Ali who after admitting it to be correct signed it. On the basis of murasila Ex:PA/l, the case was registered vide FIR Ex:PA by Azam Khan AS1 (PW3). Murtaza Khan AS1 (PW8) then went to the spot where he prepared the injury-sheet of Mst. Nusrat Ex:PJ and sent her under the escort of a constable for medical treatment. He also prepared the injury-sheet Ex:PK and inquest report Ex:PK/l of Ghulam Qadir deceased and the injury-sheet Ex:PM and inquest report Ex:PM/l of Muhammad Yunis Ali deceased and sent both the deceased under the escort of Haji Rahman FC(PW9) for post-mortem examination. He then handed over the investigation to Bashir Khan, SHO (PW4) who had also rushed to the spot on being informed of the occurrence during his mobile gusht and found Murtaza Khan AS1 (PW8) busy in the investigation. When he took the investigation in his had, he inspected the spot but since it was dark he did not prepare the siteplan.
The siteplan Ex:PB was prepared on next day on the Plantation of PWs. He, however, recovered eight empties of 7.62 bore Ex:P.I on the same night from the spot in the presence of marginal witnesses of the recovery memo Ex:PE. He had taken into possession two electric bulbs Ex:LP2 along with holders from the spot, vide recovery memo Ex:PC. He had also taken into possession blood stained earth from two different points, vide recovery memo Ex: PD, packed and sealed the same into parcel and sent it to the expert for opinion. Since the accused Muhammad Ishaq was already found to be in the custody of Murtaza Khan AS1 (PW8) as a complainant in the connected case registered vide F.I.R. No. 46, Bashir Khan, the Investigation Officer (PW4) arrested him as an accused in the present case. On 21.2.1990, he took into possession two sealed bottle Ex:P-3 and Ex:P-4 sent to him by the Medical Officer after post-mortem examination of the two deceased vide recovery memo: Ex:PH.
The clothes of the two deceased were sent to the Medical Examiner Whose report is Ex:PQ. The shirt Ex: P-5, Shalwar Ex: P-6, blood stained bearing corresponding cut marks belonging to deceased Muhammad Yunis Ali sent by the Medical Officer after post-mortem examination were taken into possession, vide recovery memo: Ex: PF. Similarly the shirt Ex:P-7, Shalwar Ex:P-8, Banyan Ex:P-9, Waste- coat Ex:P-10, Sweater Ex:P-ll, Woollen Cap Ex:P-12 blood stained bearing corresponding cut marks belonging to deceased Ghulam Qadir sent by the Doctor after post-mortem examination were taken into possession, vide Memo: Ex. PG. The Investigating Officer then recorded the statement of P.Ws, and on completion of the investigation submitted challan to the court against the accused for trial.
4. Dr. Zahirullah, Medical Officer, Civil Hospital Lund Khwar (PW1) conducted autopsy on the dead body of Muhammad Yunis Ali deceased on 20-2- 1990 at 8.30 A.M. And found the following: - Extemal Examination:
1. A i.e arm inlet wound at right temporal mendibular joint size about 1" x 1".
2. A i.e arm inlet wound at outer angle of right eye brow size about T x r.
3. A i.e arm inlet on right side root of the neck size about 1/4" x 1/4".
4. There is corresponding i.e arm exit on left side of neck at medial aspect of left color bone size about 1/4" x 1/4".
5. Grazing i.e arm wound on right face. A bullet recovered from inside the skull.
INTERNAL EXAMINATION.
Abdomen-Easophigus injured. Skull, vertebrae and brain were injured.
In the opinion of the Doctor death occurred due to i.e arm injuries to brain causing instantaneous death.
Time between injury and death was opined instantaneous and between death and post-mortem within 12 hours.
He proved his report Ex:PN, pictorial Ex:PN/l, injury-sheet Ex:PM and inquest report Ex:PM/l.
Dr. Muhammad Shamim Agency Surgeon Landi Kotel who had earlier on 19.2.1990 at 10.45 P.M.
Examined Mst. Nusrat and found grazing wound of i.e arm on her right back of chest at level of 7th rib, size 1" x 1/2" and had opined the injury as simple conducted autopsy on the dead body of Ghulam Qadir deceased on 20.2.1990 at 2.45 A.M. And found the following: - Extemal Examination:
1. Inlet i.e arm wound one on left check 1" x 1".
2. There is corresponding outlet i.e arm wound one on fight check, size 1.1/2" x 1/2".
3. One inlet i.e arm wound on back of head 1" x 1".
4. There is corresponding outlet i.e arm wound one on fore-head., 1.2/3" x 1.2/3".
5. One inlet i.e arm wound on front of right side chest 1/2" x 1/2". One bullet piece removed from inside right side chest.
6. One inlet i.e arm wound on back of right side chest at level of 6th rib, size 1" x 1".
7. There is corresponding outlet i.e arm wound on right back of chest at level of 4th rib size 2" x 2".
8. One inlet i.e arm wound below right nipple 1" x 1".
9. There is corresponding outlet on back of right side chest 1.1/2" x 1.1/2".
Internal Examination: Cranium and spinal card, scalp, skull, membrane and brain injured.
Thorax-Walls, right side pleurae, right lung, blood vessels were injured.
Abdomen-stomach contained semi-digested food material. Mouth, pharyn injured.
Death in the opinion of the Doctor occurred due to i.e arm leading to haemorrhage, shock and death. Time between injury and death was opined by the Doctor instantaneous, between death and post-mortem about 12 hours. He proved his report Ex:PL, Pictorial Ex:P.L./l, inquest report Ex:PK/l and injury sheet Ex:P.K.
5. In order to prove the charge against the accused the prosecution produced 9 P.Ws., out of whom Shahid Ali (PW6) and Mst. Nusrat (PW7) furnished ocular account of the occurrence while Murtaza Khan AS1 (PW8) and Bashir Khan, SHO (PW4) conducted the investigation. The two Doctors proved their post-mortem reports. The recovery of empties and bulbs and preparation of the site plan were proved by the two aforesaid Police Officers.
6. The accused appellant was examined under section 342 Cr.P.C, who admitted having charged a relative of the complainant party for the murder of his brother and father and having reported the occurrence earlier than the report in the present case was made. The recovery of bulbs and empties were stated to have been fabricated. He said that the accusation was false having been levelled by the interested witness. When asked as to why he was charged, the accused replied as under:- "As a matter of fact, I have charged Aziz Ahmad etc. Mentioned earlier for the double murder of my brother and father and in order to efface the affect of my charge against them, have been implicated in this case Falsely. I produce copy of the relevant FIR bearing No. 46 of the even date, registered in the same P.S. u/s 302/307/148/149 PPC., which is Ex: DA".
7. The accused did not produce any evidence in defence nor he appeared as his own witness under section 340 (2) Cr. P.C.
8. The trial Court believed the ocular testimony of Shahid Ali and Mst. Nusrat (PWs) who deposed that they had seen the accused firing at the two deceased. The medical evidence and the recovery of empties from the spot were considered as a corroboration to the ocular testimony. The motive was also taken as corroborative piece of evidence. The learned Sessions Judge while discussing the point of identification of the accused held that both the parties were of the same locality and being neighbours had no difficulty to identify each other and particularly when there was no evidence that at the relevant time electricity was not available or there was load-shending. In accepting the test money of related witnesses namely, Shahid Ali and Mst. Nusrat and in rejecting the defence version about the connected case registered at the instance of accused Muhammad Ishaq Vide FIR No. 46 Ex: DA, the learned Sessions Judge observed as under:- 'Conversely it was rightly argued by the S.P.P. That the case in had is not the cross of case registered vide FIR Ex: DA. Because the time of occurrence given in both the FIRs and place of occurrence in both the cases are different. The occurrence vide FIR of the instant case took place at 2115 hours in the house of the complainant Shahid Ali (PW7)and the occurrence in the case FIR No. 46. (Ex: D.A.) took place at 2110 hours in the hujra of accused Muhammad Ishaq father the occurrence of the instant case is OF-shoot of the case registered by the accused Muhammad Ishaq vide FIR No. 46 (Ex: DA.) and this fact goes a long way to prove the motive of the case in had as disclosed by Shahid Ali in his report Ex: PA."
9. The discrepancies pointed out to the learned Sessions Judge were taken as minor discrepancies and about the failure of independent witnesses to witness the recoveries he observed that people are reluctant to come forward due to fear of revenge. On the basis of evidence furnished by the prosecution, the learned' Sessions Judge was convinced that the charge against the accused was proved beyond any shadow of doubt and accordingly he convicted and sentenced the accused appellant as above.
10. We have heard Mr. Jehanzeb Rahim, Bar-at-Law, Advocate, for the accused appellant and Mr. Shahzad Ahmad, Advocate, for the State and with their assistance have gone through the entire evidence on record. The occurrence in which two persons were killed had taken place at 9.15 P.M. In the month of February. Prior to the present occurrence at 9.10 P.M. On the same night Muhammad Ishaq accused-appellant had reported to the police that his brother Muhammad Akram was killed while his father was injured with the firing made by Aziz Ahmad and Muhammad Alam and three others in the Hujra adjacent to the house of the complainant. Ex: DA. Is the copy of the report produced by the accused while recording his statement under section 342 Cr.-P.C. Aziz Ahmed was charged by the accused-appellant relative of Shahid Ali (PW6), although Shahid Ali denied his relation with Aziz Ahmad but his sister Mst. Nusrat admitted that Aziz Ahmad is their relation. Mst.
Nusrat (PW7) further admitted that Aziz Ahmad etc. Were charged for the murder of father and brother of accused Muhammad Ishaq. They, however, denied the suggestion that accused Muhammad Ishaq was not present on the spot and was substituted for the reason that he was the complainant against Aziz Ahmad etc. Bashir Khan, SHO (PW4) admitted that accused Muhammad Ishaq was already in custody of Murtaza Khan AS1 (PW8) as a complainant in the connected case registered vide FIR No. 46 (Ex: DA) and he arrested him as an accused in the present case. The Investigating Officer denied the suggestion that during investigation of the case, he came to know that Muhammad Israr and Muhammad Iqbal brothers of Muhammad Ishaq were responsible for the incident. The evidence has, therefore, to be appraised in the above facts and circumstances of the case and in that context the evidence furnished by Shahid Ali and Mst. Nusrat can not be said to be coming from the month of independent witnesses. Shahid Ali and Mst. Nusrat P.Ws, are closely related to the deceased and due to aforesaid case FIR No. 46 registered at the instance of accused they had the motive to falsely depose against the accused. Therefore, to believe them a strong corroboration of their testimony was required for the safe dispensation of justice. We on the contrary find no such corroboration so as to accept them as truthful witnesses. It has been held in number of reported cases that in accepting the oral testimony of interested witness, independent Corroboration is a must. The two cases cited by the learned counsel for the accused appellant are Sheikh Muhammad Vs. Ghulam Muhammad and others (1985 SCM R 95) and Hazratullah and another vs. The State (1968 SCM R 1361). In these cases the evidence of the interested witness finding no corroboration from independent source was not believed and the accused were acquitted. The circumstances of the present case also do not support the version given by the two eye witnesses Shahid Ali and Mst. Nusrat. If we look into the cross examination of Shahid Ali we find that participation faced in the commission of the offence is highly improbable. He deposed that he was proceeding to the Police Station for lodging the report but the police met him at a distance of sixty paces from his house. He admitted that before proceeding to the Police Station he remained on the spot for about ten minutes. He further admitted that occurrence had taken place at 9.15 P.M.
If Shahid Ali had stayed for ten minutes on the spot and met the police at some distance from the house then the timing of report should have been either 9.25 or 9.30 P.M. And not 9.50 hours was made after deliberation and consultation inasmuch as prior to the present occurrence Muhammad Ishaq accused-appellant had made a report at 9.10 hours to the police about the occurrence in which his brother and father was killed and he had charged Aziz Ahmad, a relative of the complainant for firing and committing the murder of his brother and father. Bashir Khan, SHO, (PW4) has deposed that he arrested the accused when he was in custody of Murtaza Khan, AS1 (PW8). Murtaza Khan AS1 (PW8) admitted that he recorded the report of Muhammad Ishaq accused the same night at 21.30 hours and time of occurrence of that incident was shown to be 21.10 hours. Keeping in view the deposition of these two as, the presence of the accused at the time of occurrence of FIR No. 47 at 21.15 hours appears to be highly improbable. The accused made a report (FIR No. 46) at 21.10 hours. He remained with Murtaza Khan AS1 till he was arrested by Bashir Khan, AS1. The arguments of the learned counsel for the State that accused might have rushed to the police within i.e minutes after committing the offence is not appealing.
11. The medical evidence instead of providing corroboration is in conflict with the ocular testimony furnished by the aforesaid two P.Ws. The ocular testimony is to the effect that the deceased faced the accused when he was fired at. This shows that deceased could receive injuries on the front but the medical evidence is to the effect that injuries No.3 and 6 were caused on back side of the deceased. Again the witnesses have deposed that accused had fired with Klashinkov at the deceased whereas the injuries caused are of different sizes leading to the inference that different weapons were used in the firing.
12. The evidence of recoveries of empties and bulbs also do not provide any corroboration to the ocular testimony. It is astonishing to note that Bashir Khan SHO (PW4) could find the empties on the spot in the light of bulb but could not prepare the siteplan the same night. The recoveries of empties and bulb were not witnessed by an independent witness from the locality though it was admitted by Shahid Ali (PW6) in the cross examination that after the occurrence some 20/25 persons were attracted to the spot. The Investigating Officer had not even asked any one of them to witness and sign the recovery memos as marginal witness so that we could say that on their refusal to witness the recovery memos, he had no other option but to ask his own colleague Murtaza Khan AS1 (PW8) to witness the recoveries. He had not sent the empties recovered from the spot to the Arms Expert for his opinion as to whether these were fired from one or two different weapons. While dealing with this point in the case of Obaidullah and another Vs. The State (PLD 1986 Peshawar 150), the learned Judges observed as under:- "Empties allegedly recovered from spot were not sent to Firearms Expert to verify whether those were fired from one or different weapons-Recovery as such was rendered doubtful."
The recoveries of empties and bulbs are all witnesses by Murtaza Khan AS1 (PW8). In the facts and circumstances of the case, these recoveries should have been witnessed by some independent persons. The recoveries were neither mentioned in the inquest report as was the requirement of the Police Rules nor in the FIR. In the case of Peera etc. Vs. The State (NLR 1984 Criminal 73) recoveries not mentioned in the FIR and inquest report were considered as unreliable. Similarly in Adalat Hussain Vs. The State (PLJ 1989 Cr. C (Lahore) 48 (DB), the recovery not mentioned in the FIR and inquest report and not witnessed by independent witness were doubted.
13. The Investigating Officer had recovered two bulbs from point No.8 and 9 in the siteplan in order to show that the accused could be identified in the light of bulb but strangely enough he had not mentioned the voltage of bulb as only then it could be said that light was sufficient for identification. The siteplan Ex: PB prepared by the Investigating Officer on the next day of the occurrence does not show the distance between point No.9, the place of bulb and point No.3, the place of accused.
Similarly no distance is shown between points No.8 from where the second bulb was recovered and point No.3. He has also not shown the door knocked by the accused appellant and opened by the deceased. We would, therefore, conclude that the recovery of bulbs had been introduced only to show that accused could be identified at the time of occurrence and the recovery is not genuine.
14. The evidence brought on record would show that few minutes before the occurrence, Muhammad Ishaq accused made a report to Murtaza Khan AS1 (PW-8) wherein he charged Aziz Ahmad, a relative of complainant party for firing at his brother and father. The report was reduced into murasila and on the basis of this murasila a case was registered under sections 302/307/148/149 PPC against Aziz Ahmad and others, vide FIR No. 46 dated 19.12.1990, Police Station Lundkhawar. The prosecution version is that Muhammad Ishaq accused had committed the murder of the father and brother of Shahid Ali (PW-6) regarding which report was made on the spot. The defence version on the other had, is that Aziz Ahmad a relative of the complainant had fired at the brother and father of the accused and that he was not responsible for omitting the murder of Ghulam Qadir and Muhammad Yunis Ali, the two deceased in this case. The fact that in the double murder of father and brother of the accused, Aziz Ahmed and others were charged is admitted by Shahid Ali (PW6) in the cross examination. He, however, denied that the relative of the accused had fired at them when they were in process of giving protection to Aziz Ahmed. He also denied the suggestion that relative of the accused including his brothers Muhammad Iqbal and Muhammad Israr were not charged because they wanted to implicate the accused who reported the occurrence of double murder of his father and brother. Thus there are two versions one given by the prosecution and the other by the defence. When this is the leave then the version favourable to the accused is to be accepted.
In re: Muhammad Sultan Vs. Muhammad Aslam and another (1988 SCM R 857), it is held:- "The appellate Court on the basis of this scrutiny of evidence correctly arrived at the conclusion that it was a case in which the prosecution version and the defence version were to be placed side by side and then the Court had to judge which of them was more plausible and if both such versions were possible the one favourable to the accused was to be preferred. It was on the basis of this settled principle that the respondent was acquitted."
In Muhammad Younas Vs. The State (1992 SCM R 1592) the August Supreme Court observed that:- "In lease of two versions of the occurrence both the versions have to be kept? In juxtaposition and the one favourable to the defence is to be preferred, if the same gets some support from the admitted facts and circumstances of the case and appeals to common sense".
The principle enunciated in the aforesaid cases is equally applicable to the instant case though no plea of self defence is involved.
15. Our appraisal of evidence has led us to conclude that the prosecution has not been able to prove the charges against the accused beyond reasonable doubt as required by law. In the facts and circumstances of the case, the conviction and sentence of the accused appellant is not sustainable in law. We would, therefore, accept this appeal, set aside the judgment dated 6.8.1992 of the learned Sessions Judge and acquit the accused-appellant of the charges levelled against him. He should be released forthwith if not required in any other case.