' JAWAID NAWAZ KHAN GADAPUR, J.--- Accused, namely Mukhtar son of Kachkoal, aged 37 years and Ashraf son of Kachkoal, aged 30 years (brothers inter se) residents of village Shahi Bala, Tehsil and District Peshawar, were put on trial in the Court of Additional Sessions Judge-V, Peshawar (Mr. Ehsanullah Khan Babar) for having committed offences punishable under section 302/324/34, P.P.C.
2. The allegations against the accused, facing trial, are that they, on 20-2-1994 at 6-00 p.m., along with their third brother, absconding accused Jan Muhammad, and in furtherance of their common object, intentionally committed the murder of Hakeem Shah son of Wazir, by firing at him with their lethal weapons, on the thoroughfare of village Shahi Bala opposite the shops situated there. In addition to that they also made attempts at the lives of the complainant, Azeem Shah (P.W.9), and his brother-in-law Zewar Shah (P.W.10) by firing at them. Luckily both of them escaped unhurt.
3. The Additional Sessions Judge, by his judgment, recorded on 8-8-1995, acquitted Mukhtiar accused, giving him the benefit of doubt, by accepting his plea of alibi. The appellant-accused was, however, found guilty of committing the murder of Hakeem Shah. As such the trial Court convicted him under section 302/34, P.P.C. And sentenced him to undergo imprisonment for life and to pay fine amounting to Rs,25,000 or in default thereof to undergo further S.I. For a period of three years. The Additional Sessions Judge further directed that the fine, if realized, shall be paid to the legal heirs of the deceased by way of compensation. The appellant-accused was further convicted under section 324, P.P.C. And sentenced to R.I. For three years and also to pay a .Fine of Rs,2,000 or in default thereof to undergo S.I. For a period of six months. The sentences of imprisonment were, however, to run concurrently. The benefit of section 382-B, Cr.P.C. Was also extended to the appellant-accused.
4. By this appeal, the appellant (convicted-accused) has challenged the vires and the legality of the conviction and sentences imposed upon him by the Additional Sessions Judge.
5. Briefly stated, the prosecution case as disclosed in the F.I.R., can be enumerated as under:--
(i) that on 20-2-1994 at about 4-00 p.m. The complainant Azeem Shah (P.W.9) along with his brother Hakeem Shah (deceased) and his brother-in-law Zewar Shah son of Wazir Shah (P.W.10) was proceeding to Village Shahi Bala. When all the three reached near the shops situated in Shahi Bala they found Ashraf (appellant-accused), Mukhtiar (acquitted accused) and Jan Muhammad (absconding accused), sons of Kachkoal residents of Shahi Bala present there. They were variously armed with lethal weapons. On seeing the complainant, Hakeem Shah (deceased) and Zewar Shah (P.W.10), all the three accused started indiscriminate firing at them with their respective weapons. Resultantly, Hakeem Shah was hit and was killed on the spot. The unfortunate incident took place on the pathway (Ronda Shahi Bala) situated within the limits and at a distance of 6/7 kilometers from the Mathra Police Station. The complainant Azeem Shah (P.W.9) and Zewar Shah (P.W.10), however, escaped Unhurt and did not receive/sustain any injury;
(ii) that the occurrence was reported by Azeem Shah (P.W.9) on the same day at 6-00 p.m., at Police Post, Shagai which WAS reduced into writing in the shape of Murasila (Exh.P.A./1) by A.S.I.,- Shahzali (P.W.11). On the basis of the Murasila, F.I.R. No,53 (Exh.P.A.) was duly registered at Police Station Mathra at about 7-15 p.m.
(iii) that the motive, as set up in the Murasila (Exh.P.A/1), for the occurrence, was stated to be an altercation which took place between the deceased and the assailants over some petty matter, sometime in the morning, on the eventful day;
(iv) that the investigation was carried out by A.S.I. Shahzali (P.W.11) of Police Post Shagai, Police Station Mathra. In the first instance he had prepared the inquest report (Exh.P.W.11/1) as well as the injury sheet (Exh.P.M./3) and then scribed the Murasila (Exh.P.A./1), on the basis of which F.I.R. No,53 (Exh.P.A.) was duly registered in the Police Station Mathra. Thereafter he proceeded to the spot and prepared the site plan (Exh.P.B.) at the instance of Azeem Shah (P.W.9). The Investigating Officer vide recovery memo. Exh.P.C./2 collected blood, with cotton (Exh.P.1), from the spot. An empty (Exh.P.2) of .30 bore was also recovered from the scene of occurrence which was taken into possession vide recovery memo. Exh.P.C./3. The Investigating Officer also took into his possession the shirt (Exh.P.3), Shalwar (Exh.P.4), Banyan (Exh.P.5), stained with blood, belonging to the deceased and produced by Constable Tehseentillah (P.W.8). All these articles were sent by Dr. Umar Khitab (P.W.4), who had conducted the autopsy on the dead body of the deceased. The bottle (Exh.P.6), containing the spent bullet and recovered from the dead body of the deceased, was also taken into possession by the Investigating Officer vide recovery memo. Exh .P. 1;
(v) that vide applications Exh.P.W.11/2 and Exh.P.11/3 the Investigating Officer applied for the issuance of warrants under section 204, Cr.P.C. And proclamation notices under section 87, Cr.P.C.
Against the accused who had absconded. It may be mentioned that both these applications (Exh.P.11/2 and Exh.P.11/3) were in fact scribed by A.S.I. Said Bostan (P.W.6). The Investigating Officer then recorded, the statements of all the P.Ws. And was thereafte transferred;
(vi) that the dead body of Hakeem Shah (deceased) was escorted to the mortuary by F.C. No,3585 Tehseenullah (P.W.8) where the same was identified by Zewar Khan son of Abdul Khanan (P.W.5).
The postmortem examination was conducted by Dr. Umar Khitab, Forensic Medicine Department, Khyber Medical College, Peshawar (P.W.4);
(vii) that on 27-8-1994 Mukhtiar (acquitted-accused and Ashraf (appellant-accused) surrendered themselves before A.S.I. Said Bostan (P.W.6) of Police Station Mathra. Both of them were accordingly arrested and their statements were recorded. After the arrest of the said two accused, S.H.O. Police Station Mathra, Rahmatullah (P.W.7) submitted supplementary challah against them; (viii)that, it may be pointed out here, after the completion of the investigation, the local police had already submitted complete challan against the accused in the Court of Additional Sessions Judge through S.H.O. Ali Haider (P.W.1) of Police Station Mathra.
5. At the trial charge against the two accused was framed on 1-2-1995 which was read over and explained to them. The accused pleaded not guilty, professed innocence and stated that they had been falsely implicated in the case and thus claimed trial.
6. To prove its case, the prosecution produced as many as 12 witnesses, almost all mentioned above. The accused were then examined under section 342, Cr.P.C. On 6-6-1995. Both of them neither produced any evidence in their defence nor chose to appear as their own witness and be examined, on oath, 'under section 340(2), Cr.P.C.
7. After hearing the learned counsel for the parties and taking into account the prosecution evidence, the Additional Sessions Judge, Peshawar, by his impugned judgment, acquitted Mukhtiar accused by giving him the benefit of doubt. He, however, convicted appellant accused Ashraf under section 302/324, P.P.C. And sentenced him as stated earlier in para.2 above.
8. We have had the advantage of hearing the learned counsel for the parties, Khawaja Muhammad Khan, Advocate for the appellant, Mr. Abdul Rauf Khan Gandapur, Advocate for the State, assisted by complainant Azeem Shah and have also gone through the record of the case with some degree of care.
9. At the outset, it may be stated, that the fate of instant case, in the main, hinges on the ocular testimony of complainant Azeem Shah (P.W.9) and Zewar Shah (P.W.10) as well as the circumstantial evidence, motive apart.
10. Let us proceed to discuss these one by one. The ocular evidence is taken up in the first instance.
11. While in the witness-box the complainant Azeem Shah (P.W.9), narrated in detail the incident which is almost the same as has been given in Murasila Exh.P.A./1. However, it may be noted, that the complainant while giving the "motive" for the alleged killing, contradicted his own stand as taken in the Murasila (Exh.P.A./1). In the Murasila the complainant had specifically mentioned that the motive for the commission of offence was that in the morning of the eventful day, his brother, Hakeem Shah (deceased) had some altercation with the accused. But when he was examined on oath in the Court as P.W.9 he stated in his examination-in-chief:-- "The motive for the occurrence was that a day prior to the occurrence a verbal altercation had taken place between the deceased and the accused."
12. In his cross-examination the complainant (P.W.9) admitted that he did not know the name of the shopkeeper, in front of whose shop, the unfortunate incident took place. He also admitted that quite a few persons were present, on the spot, at the time of the occurrence. According to him he did not know the accused before the occurrence because they were the residents of another village. According to him he was informed about the names of the accused by the people who were present on the spot at the time of the occurrence. The complainant further stated, in his cross-examination, that he did not notice from which direction the accused had emerged and whether they were armed with shotguns or rifles. He admitted that after the occurrence neither he nor Zewar Shah (P.W.10) raised any hue and cry so as to attract the people to arrest the accused.
He also admitted that:--
(i) he did not, know that Hakeem Shah (deceased) was fired upon and was injured in case lodged vide F.I.R. No,109 of 1987 and registered in Police Station, Mathra;
(ii) he did not know that Naseem Shah son of Muneer Shah had once injured Hakeem Shah (deceased) by firing at him effectively and that a case, in this respect, was duly registered vide F.I.R.
No,52, dated 20-3-1989 at Police Station, Mathra under section 307/34, P.P.C. Against Naseem Shah and that the said Naseem Shah was still absconding in that case as no compromise had been effected between him and the deceased;
(iii) he did not know if Hakeem Shah (deceased) alongwith two other persons, belonging to Village Regi, were charged for having killed one Kamal son of Umar Khan, driver of Truck No,DNA-3407, and that Hakeem Shah (deceased) had become an absconder in that case and was declared as a proclaimed offender.
13. It may also be mentioned here that in his statement recorded in the Court, the complainant (P.W.9) stated that at the time of the occurrence the deceased was going ahead of him as well as Zewar Shah (P.W.10) and that he had reported this fact to the Police Officer who ,recorded Murasila Exh.P.A./1 at his instance. However, a perusal of the Murasila would show that this fact was not mentioned in the Murasila (Exh.P.A./1).
14. Zewar Shah (P.W.10) who is closely related to the complainant, being his brother-in-law, as well as to the deceased and is alleged to have witnessed the occurrence, when examined on oath, stated that on the eventful day he alongwith the complainant (P.W.9) and the deceased was going from Regi to Village Shahi Bala on foot, that Hakeem Shah (deceased) was proceeding ahead of them while he and the complainant were following him. According to him when they reached near the shops, the place of occurrence, the deceased was fired upon. He further stated that thereafter he saw Jan Muhammad (absconding accused), Mukhtiar Ahmad (acquitted accused) and Ashraf (appellant) running towards Village Shahi Bala. He further stated that after the occurrence they rushed towards the deceased and found him dead. It may be noted that this witness, in his entire examination-in-chief, nowhere charged the accused for firing at the deceased. He also did not state that he had seen the appellant-accused the acquitted accused/absconding accused fire at the deceased.
15. When cross-examined, this witness stated that he did not know the name of the shopkeeper in front of whose shop the occurrence had taken place. He further stated that he had not accompanied the dead body of the deceased to the police post from the place of occurrence. In the next breath he stated as under:-- "The dead body of the deceased was taken in Datsun first to Police Station Nasir Bagh and then to Police Post Shagai for lodging the report of occurrence."
16. It may be noted that by advancing an altogether new story, in respect of occurrence this witness who is alleged to be an eye-witness, has materially contradicted the version of the complainant (P.W.9) as given by him while he was in the witness-box as well as the version as contained in the Murasila (Exh.P.A./1).
17. Again, this eye-witness stated in crystal clear words that:--"I had not seen whether the accused were armed with topaks or pistols."
18. The matter does not end here, as P.W.10, when further cross-examined, stated on oath that-- "My statement was not recorded by the Investigating Officer and if any statement had been written that would be written by the Investigating Officer on his own behalf because I was not asked by the Investigating Officer."
19. The conflict/contradiction between the versions/account given by these two eye-witnesses in respect of the one and the same occurrence being irreconcilable, has, in our opinion, sh4ttered the very veracity of the ocular testimony which has, in the circumstances, become highly doubtful.
Both the alleged eye-witnesses have contradicted each other on almost all the material points as discussed above, and have also ,made the identity of the assailants, who caused the death of the deceased, extremely doubtful.
20. The Investigating Officer A.S.L Shahzali Khan (P.W.11) also does not seem to be a truthful witness because in his cross-examination he stated on oath that:--
(i) he had recorded the statement (txh.D.A.) of Zewar Shah (P.W.10) on 20-2-1994 at the place where the occurrence took place; and
(ii) Zewar Shah (P.W.10) had come to the police post alongwith the dead 8 body of the deceased.
21. Needless to mention that Zewar Shah (P.W.10) had categorically denied that his statement was recorded by the Investigating Officer and that he had gone, with the dead body of the deceased to the police post.
22. After the close of the prosecution case both the accused were examined under section 342, Cr.P.C. When Mtikhtiar accused (since acquitted) was asked:-- "It is in evidence that just after the occurrence you remained absconder till your arrest. What do you say about it?"
23. The accused replied as under:-- "The allegation is incorrect, On, the day of occurrence I was serving in Saudi Arabia where I had gone on the basis of valid Passport and Visa. I produce attested copy of my Passport and Visa alongwith P.I.A. Ticket of the relevant days which are Exh.D.A., Exh.D.A./1, Exh.D.A./2, Exh. D . A . /3 , Exh.
D . A . /4 , Exh. D . A . /5 , Exh. D . A . /6 , Exh. D . A . /7 , Exh.D.A./8 and Exh.D.A./9 annexed therewith 11 sheets which pertains to Visa and P.I.A. Tickets. I also produced attested copy of bail application and bail orders Exh.D.B. (5 sheets) wherein I had requested for disposal of application based on inquiry of the local police."
24. Similarly when he was asked:-- "It is in evidence that the motive for the occurrence was that a day prior to this incident verbal altercation took place between the deceased and the accused party. What do you Say about it?"
25. The accused (since acquitted) replied as under:-- "The deceased was a vagabond and a desperate person. He was fired at by one Naseem and a case F.II.R. No,62 Exh.D.C. Was registered against Naseem on the report of Faqir Shah deceased.
Naseem Shah is still an absconder. Vide F.I.R. Exh.D.C./1 the deceased was fired at by unknown person and the case was registered because the deceased was injured on his chest. Vide F.I.R.
Exh.D.C./2, the deceased was involved in a case of murder and later on released on bail. Otherwise too there is no eye-witness about the alleged altercation."
26. The appellant (convicted-accused) was also examined under section 342, Cr.P.C. When he was asked the following question:-- "It is in evidence that motive for the occurrence was that a day prior to this incident verbal altercation took place between the deceased and accused party. What do you say about it?"
27. The appellant-accused replied as under:- "The deceased was a vagabond and a desperate person. He was fired at by one Naseem and a case vide Exh.P.D. Was registered against Naseem on the report of Faqir Shah deceased. Naseem is still absconder. Vide Exh.D.C./1, the deceased was fired at by unknown person and a case was registered because the deceased was injured on his chest. Vide F.I.R. Exh.D.C./2 the deceased was involved in a case of murder and later on released on bail. Otherwise too there is no eyewitness about the alleged altercation."
28. Both the accused, however, refused to be examined as their own witnesses under section 340(2), Cr.P.C. And to produce any evidence in their defense.
29. Next we have to ascertain the evidentiary value of the circumstantial evidence. The record of the case, which is before us, shows that the site plan was prepared by the Investigating Officer (P.W.11) at the instance of the complainant (P.W.9). According to this the deceased has been shown to be present, at point No,1, when he was allegedly fired upon by the appellant-accused (point No,4), the acquitted accused (point No,5) and the absconding accused (point No,6). It would, therefore, follow that if the story as given by the alleged eye-witnesses, P.W.9 and P.W.10, is to be taken as true/correct, then in that case, the deceased should have received all the injuries (5 in number) on the front side of his body, i,e, his chest etc. However, when Dr. Umar Khitab of Forensic Medicine Department Khyber Medical College, Peshawar (P.W.4) was examined, who had conducted post-mortem examination/autopsy on the dead body of the deceased, he stated, in the last three lines of his cross-examination, as under:-- "Entry wound No,1 rather all the entry wounds are on the left and from left to right side of the body of the deceased."
30. It is, therefore, very much obvious that both the alleged eye-witnesses had told a lie regarding this important point which of course, had a material bearing on the culpability of the appellant.
Since both the eye-witnesses, in our opinion, are compulsive tiers, as such their evidence cannot be believed/relied upon.
31. As against this, the stand taken by Mukhtiar, the acquitted accused, duly supported by the Passport, Visa and P.I.A. Ticket showing that he was not present at the place of occurrence on the day when the unfortunate incident took place and was in Saudi Arabia, was accepted by the trial Court. The Additional Sessions Judge, therefore, by extending the benefit of doubt to him, acquitted him.
32 In the light of above discussions, it has been strenuously alleged by the learned counsel for the appellant that in the present case the eye-witnesses have falsely implicated one of the culprits, therefore, the credibility of their testimony, as regards the other culprits, stood completely shattered/eroded and cannot be safely relied upon, that in the circumstances, it had to be discarded.
' Judged in this context we cannot ignore the fact that the testimony of the two P.Ws. Is inherently defective, contradictory in nature and therefore, does not inspire confidence.
32. It is well-settled principle of law that in criminal cases the burden of proving its case rests entirely on the prosecution. The prosecution is duty bound to prove its case, against the accused, beyond reasonable doubt and this duty does not change or vary in the case in which no defense plea is taken by the accused. It would, therefore, follow that anything which goes in favor of the accused must be taken into consideration and the benefit of the same, if any, be extended to him not as a matter of grace but as a matter of right.
33. Both the eye-witnesses, in our opinion, have contradicted each other on material points and have also introduced an element of uncertainty regarding the identity of the assailants, who had killed the deceased. The question of sifting the grain from chaff, in the circumstances of the present case, does not arise because the ocular account conspicuously suffers from false implication of the acquitted accused, the manner of assault, the incorrect attribution of weapons to them and is in direct contradiction with the medical evidence. It appears that the occurrence had taken place in a different context than the one alleged by the prosecution. The prosecution, no doubt, sees only what it is prepared to see but in the present case the ocular evidence, being inherently defective and false merits no consideration, and is accordingly discarded. (PLD 1995 Pesh. 144).
34. Lastly, even the motive, as set up in the F.I.R. (Exh.P.A.), for the commission of the offence, has not been proved by cogent evidence during the trial. The motive regarding altercation between the accused and the deceased has not been disclosed with full detail. It is as vague as it is hazy. It has been mentioned in the Murasila (Exh.P.A./1), scribed Azeem Shah (P.W.9), that the altercation between the parties took place in the morning of the eventful day, whereas the same person, i,e,, the complainant when examined as P.W.9, stated that the altercation between the accused and the deceased took place a day prior to the occurrence. The prosecution, it may be mentioned here, is not bound to set up a motive for the commission of an offence. The fact, however, remains that if any motive is advanced by the prosecution for the commission of the offence, then in that case, it becomes obligatory for the prosecution to prove the motive. Failure to do so would naturally be fatal for the prosecution. In the instant case the motive set up in the F.I.R. As well as alleged by the complainant (P.W.9) in his statement recorded in the Court stands unproved. This fact has further weakened the prosecution case. (1996 PCr.LJ 238).
36. For the foregoing reasons, we are of the view that the prosecution has not been able to prove its case against the appellant-accused beyond reasonable doubt and, therefore, we accept this appeal, set aside the conviction and sentence of the appellant-accused and acquit him. He shall be set at liberty forthwith if not required in any other case.