' MUHAMMAD MUNIR KHAN, J.---Criminal Appeal No,15 of 1994, by leave of the Court, filed by Gulistan, Matiullah and Fatehullah against their conviction and sentence and Criminal Petition for Leave to Appeal No,30 of 1994 filed by Muzaffar Khan for the enhancement of the sentence of the aforesaid persons, are directed against the judgment dated 18-10-1993 of Peshawar High Court, Branch Registry D.I. Khan. We propose to dispose them of through this single judgment.
2. In the occurrence which took place on 12-7-1992 at Peshiwela near Gandi Sur Wali in the area of Kot Tagga at a distance of 22/23 k.m. From Police Station Chaudwan, District D.I. Khan. Gulistan Khan armed with rifle, Matiullah armed with Klashnikov, Fatehullah armed with rifle and Attaullah (acquitted accused) armed with rifle fired shots from their weapons at Sikandar Khan and killed him on the spot and attempted to kill Muzaffar Khan P.W.4 son-in-law of the deceased. The motive allegedly was to take the revenge of the murder of Tagga Khan father of Attaullah accused by Sikandar Khan deceased. F.I.R. Was lodged by Muzaffar Khan P.W.4 at the Police Station on the same day at 9-30 p.m. Dr. Shah Jehan P.W.2 conducted the post-mortem examination on the dead body of Sikandar Khan. He found three fire-arm entry wounds and two exit wounds on the dead body. The death was due to the fire-arm injuries suffered by the deceased.
3. The appellants were arrested by Zahoor Khan H.C. P.W.7 but no firearm was recovered from them.
One empty of klashnikov and live cartridge were recovered from the spot. Since no fire-arm could be recovered from the appellants, the recovery of the empty and live cartridge from the spot is of no consequence.
4. The prosecution produced as many as seven witnesses. Muzaffar Khan P.W.4 is the solitary eye- witness of the occurrence. He claimed to have seen the appellants and Attaullah firing shots at the deceased from their weapons. According to him, appellants had also fired shot at him but he escaped unhurt. Dr. Shah Jehan P.W.2 has proved the post-mortem examination report.
Muhammad Ayaz F.C. P.W.1 has supported the recovery of one empty of klashnikov P5 and live cartridge P6. Zahoor Khan H.C. P.W.7 registered the F.I.R. And had investigated the case. The rest of the evidence is of formal nature.
5. In their statements under section 342, Cr.P.C. The appellants and Attaullah denied all the incriminating circumstances and raised the plea of false implication. According to the appellants, it was an unseen murder, Muzaffar Khan was summoned from his Basti after the occurrence. The deceased and his family members had many enemies. They however, did not produce any evidence in defence nor did they appear in disproof of the charges against them.
6. On the conclusion of the trial, Attaullah was acquitted and the remaining accused namely Gulistan Khan, Matiullah and Fatehullah, the present appellants were convicted under section 302/34, P.P.C. And sentenced to imprisonment for life and a fine of Rs,20,000 each or in default two years R.I. Each. Half of the fine was to be paid to the legal heirs of the deceased. They were also convicted under section 324/34, P.P.C. For murderous assault on Muzaffar Khan P.W.4 and sentenced to three years' R.I. The sentences were ordered to run consecutively. Benefit of section 382-B, Cr.P.C. Was, however, given to them. The convicts filed appeal against their convictions and sentences. Muzaffar Khan complainant filed revision for the enhancement of the sentence of the accused in the Peshawar High Court, Branch Registiy D.I. Khan. The High Court vide its judgment dated 18-10-1993 has dismissed the appeal and the revision as well. Feeling aggrieved thereby, Gulistan and others (convicts) filed petition for leave to appeal in this Court which was granted on 24-1-1993 to consider whether there was satisfactory corroboration of the solitary statement of an inimical witness so as to form sound basis for conviction on a capital charge.
7. Learned counsel for the appellants has argued that the prosecution has failed to prove its case against the appellants beyond reasonable doubt inasmuch as the F.I.R. Is not a genuine document; that Muzaffar Khan -- the only eye-witness of the occurrence, being a related and inimical witness and having not been relied upon to the extent of Attaullah accused to whom he had attributed firing at the deceased, could not be implicitly relied upon against appellants without corroboration which is not available.
' On the other hand, learned counsel appearing for the complainant in the connected petition (Cr.P.LA. No,30/1994) for enhancement of the sentence has not only supported the impugned judgment but has also prayed for the enhancement of the sentence on the ground that no mitigating/extenuating circumstance was available for not awarding the capital sentence to the accused/appellants.
8. We have carefully considered the arguments addressed by the learned counsel for the parties in the light of the evidence on record and the circumstances of the case. We feel persuaded to agree with the learned counsel for the appellants in Criminal Appeal No,15 of 1994. There are reasons to doubt that the F.I.R. Exh.PA is not a genuine document and the name of Matiullah appellant was added subsequently. Zahoor Khan Investigating Officer P.W.7 has admitted in the cross- examination that the signatures of the complainant on Exh.PA/D-1 are at the bottom of the front page while signatures of the complainant on F.I.R. Exh.PA are on its reverse and there are also cuttings without any initials thereon. On our reading of the two F.I.Rs, Exh.PA and Exh.PA/D-1 brought on the record we find material discrepancies therein. The explanation given by Zahoor Khan Investigating Officer P.W.7 that the discrepancies in the F.I.Rs, may be due to slipping of the carbon copy, appears to be false, in that, the Exh.PA/D-1 does not seem to be the carbon copy of F.I.R.
Exh.PA. Both are written with different pen, ink and at different times. We are convinced that Zahoor Khan Investigating Officer P.W.7 has dishonestly prepared the F.I.R. In this view of the matter, the prosecution evidence has to be appreciated with care and caution.
9. The conviction of the appellants rested on the solitary statement of Muzaffar Khan P.W.4. No doubt, in a criminal case the conviction of an accused can be based on the statement of one witness without corroboration but the condition is that the witness should be absolutely dependable. Applying this principle of appreciation of evidence in the instant case, we find that the evidence of Muzaffar Khan cannot attain and has not attained that high standard and he cannot, therefore, be accepted as an absolutely truthful witness or at least it is not of that standard on which conviction can safely be based on his solitary testimony. Muzaffar Khan P.W.4 is a related and partisan witness. The presence of Attaullah accused to whom he had attributed active participation in the occurrence, was found doubtful by the trial Court. The revision filed by the complainant against his acquittal has been dismissed by the High Court. This will show that Muzaffar Khan is not only an interested witness but he also had exaggerated number of the accused by involving as many persons of accused family as he wished. Matiullah and Fatehullah are the sons, and Attaullah is the real nephew, of Gulistan appellant. In any case, the corroborative evidence qua each appellant was imperative. So, in order to be satisfied that no innocent person is convicted, we have decided to look for additional evidence giving support to the statement of the eye-witnesses so as to create that decree of probability of the guilt of the appellant which could furnish safe basis of conviction.
10. The motive for the murder of Sikandar Khan deceased allegedly was that in the year 1964 he had murdered Tagga Khan the father of Attaullah accused. Attaullah has since been acquitted. So, the circumstance of motive could not and should not be used against the appellants. There is no other direct or circumstantial evidence to connect the appellants with the murder of the deceased.
11. For the aforesaid reasons, Criminal Appeal No,15 of 1994 is accepted. The conviction and sentences of the appellants are set aside and they are hereby acquitted. Since the appellants in CrA. No,15 of 1994 who are respondents in the connected petition (Criminal Petition for Leave to Appeal No,30 of 1994) for the enhancement of the sentence, have been acquitted of the charge, Leave to Appeal is refused in Cr.P.L.A. No,30 of 1994 having become infructuous.