SARDAR MUHAMMAD RAZA, J.---Noor Muhammad Khan son of Hanan was murdered on 3-1-1992, at 10-00 hours in his village 3/4 kilometres North of Police Station Domel, District Bannu.
2. The story of such murder as narrated by Abdul Qadir son of Shah Baraz in F.I.R. No. 1 of Police Station Domel lodged 25 minutes after the occurrence, was that Abdul Qadir alongwith his father Shah Baraz, Noor Muhammad, Abdul Wadood and Gul Zaman had gone to their landed property.
His father Shah Baraz was cutting the branches of date tree when Masoodur Rehman, Waleedur Rehman, Faizur Rehman and Khob Nawaz sons of Tallu Khan came out armed from their nearby house, Masoodur Rehman and Waleedur Rehman opened fire at Noor Muhammad. He got hit with the fire-shot of Masoodur Rehman and died on the spot. Waleedur Rehman, Faizur Rehman and Khob Nawaz fired at Abdul Qadir with an intention to kill. Abdul Qadir got hit with the fire-shot of Waleedur Rehman and was seriously injured while the attempt of other two went abortive.
3. Motive for the occurrence is stated by complainant Abdul Qadir to be enmity over the same landed property where the occurrence took place and a water channel that flowed there. The F.I.R.
Was completed, it was read over to the maker who after admitting the same to be correct, put his signature in English. The injury sheet of Abdul Qadir was prepared after the completion of report he was sent to Domel Hospital for treatment when, in the meanwhile, the dead body of Noor Muhammad Khan was also brought to the Police Station whose injury sheet and inquest report were prepared and under the escort of a different constable, the body was sent to the same hospital for post-mortem examination.
4. All the accused who happened to be real brothers made themselves scarce to the police but subsequently seem to have surrendered on 3-8-1992. It seems so because all were arrested on one day. Complainant Abdul Qadir (P.W.10) and Abdul Wadood (P.W.11) were examined in the trial as eye-witnesses besides other material witnesses from the police. Shah Baraz, the father of complainant and another Gul Zaman were abandoned as unnecessary. At the close of the trial Mr. Hayat A.I Shah learned Additional Sessions Judge, Bannu through his judgment dated 7-8-1994 acquitted Faizur Rehman and Khob Nawaz but held Masoodur Rehman and Waleedur Rehman guilty of offences of murder and attempted murder respectively. The former was sentenced to imprisonment for life under section 302(b), P.P.C. While the latter was sentenced to undergo imprisonment for 10 years, a fine of Rs.2,000 and also to a payment of 'Daman' amounting to Rs.3,000. In case of default in payment of fine he was to suffer two months' simple imprisonment and in case of default in payment of 'Daman' he was to suffer imprisonment till such payment. Both have filed this Appeal No.20/94 while Abdul Qadir complainant has filed Criminal Revision No.7/94 for the enhancement of sentence, to normal penalty.
5. A detailed perusal of record and the evidence recorded by the Trial Court has indicated more than many points that require thorough reappraisal. There are many things in the instant case that simply do not ring true and cannot be believed on the simple touchstone of logic and reason.
6. First among them is the motive which mainly seems to be against abandoned P.Ws. Shah Baraz and his son complainant Abdul Qadir or at the most against Abdul Wadood eye-witness but the four assailants despite the availability of their enemies on the spot have chosen a third person i.e., Noor Muhammad as target. It is specifically pointed out in the F.I.R. That the assailants had first of all pointedly aimed at Noor Muhammad and fired at him effectively. Noor Muhammad had no direct enmity with the assailants. The motive seems not properly oriented at least against Noor Muhammad deceased.
7. The complainant family is involved in serious enmity against the assailants. Not only a dispute is there over the land but in the last November, preceding the month of occurrence, a complaint also had been lodged against the accused family qua the same property, thereby aggravating the affair. The strategic aspect of the case is that this property in dispute is situated close to the house of the accused. In spite of this background and the location being close to the accused party, the complainant party had gone to the spot totally unarmed, as they say. This is not believable. The purpose of visit to the spot is not at all given or known. It was neither for sowing nor for ploughing nor for irrigating nor for harvesting. The only important thing to be done by thecomplainantparty was to cut the date tree branches and amazing it is to note that having remained on the spot till 10 a.m., only three branches were cut and that too by the oldestman in the company, named Shah Baraz, Complainant says that he had been cutting the branches with a 'lore' while P. W. Abdul Wadood does not even remember as to what implement Shah Baraz had used. The purpose of visit is extremely doubtful and indicates that the occurrence had not taken place in the manner in which it is put forth by the prosecution.
8. A rope, a towel and a few date branches were recovered from the spot vide memo. Exh. P.W.9/6 but the place of such recovery is not shown in the site plan. The Investigating Officer seems to have not been very serious about it. It is not shown that at whose instance the site plan was made.
9. The assailants had become visible to the complainant party immediately when they came out of their houses. They covered a distance of about 150 to 200 paces but still the weapons held by them in the broad daylight could not be identified by any of the witnesses. Subsequently the weapons were attributed to the assailants in consonance with the recoveries of empties made on the spot.
Funny it is to note that the witnesses are attacked by four persons with fire-arms, the assailants had opened fire with an intention to kill yet at the same time, the victims of firing are so accurate with their photographic impression of the occurrence that they were capable of following the rico- chatting of each bullet but still could not know as to what fire-arms the assailants were holding.
The arms were neither too rare to be identified nor too small to be noticed. Those were 3 rifles of 7MM and one of .303 bore. The conduct of the witnesses in the circumstances have been not only unnatural but highly exaggerated. Such minute descriptions do not go with the normal human behaviour and are certainly false.
10. The behaviour after the occurrence was all the more unnatural. It is said by the complainant that P.W. Abdul Wadood was sent to make arrangement for conveyance and that he came back with a Datsun pick-up after about 10 minutes; while P.W. Abdul Wadood says, that the occurrence had taken place on the road-side and they had remained on the spot and had just seen a pick-up on the road and called to the spot. Both the witnesses are seriously contradicting each other on a point of time during which both remained on the spot. Their presence together on the spot is doubtful. Injured complainant Abdul Qadir was taken to the hospital while the deceased was left on the spot. There was no sense in leaving the dead body on the spot and it was never done with an intention to keep the evidence intact because the same body of Noor Muhammad was of course taken to the Police Station and it also was a dead body. If the one taken to the Police Station was at all to be a dead body then there was no harm in taking the same alongwith the injured Abdul Qadir. Non-carrying of the two together in one conveyance would indicate that the two damages were caused at two different places. It indicates that the occurrence has not taken place in the manner in which it is alleged by the prosecution.
11.Another circumstance indicative of occurrence having taken place in some different perspective is that blood was found over the place of the injured complainant despite the fact that he was immediately removed: No blood was found over the place where the dead body was lying and had remained on the spot for relatively longer time. It does not lie with the prosecution to say that the blood had soaked into the clothes. The recovery memos. Would suggest that the injured and the deceased were equally dressed. Their injuries are almost similar because both had an exit wound.
The location of the injury of the deceased would suggest that he should have profusely bled but no blood was found in the body cavity either. There is no blood of the deceased on the spot and hence the spot could have been different. The doctor who conducted post-mortem examination belongs to the same area and has tried to help the prosecution by suppressing the time between injury and post-mortem.
12. According to the site plan the complainant party is not armed and hence could not take position against the assailants nor is it the case of the prosecution. Although the assailants and the victims are placed equi levelled yet the only injury received by the deceased is from up-downward with a sufficiently inclining angle. This also indicates that the occurrence had taken in a place where the origin of fire was located at a much higher level. In this behalf it was specifically suggested to the witnesses if the fire had originated from the picket of the house of the assailants.
Both the witnesses have avoided the very existence of ' Morcha' (picket) on the nearby house of the assailants whereas the Investigating Officer has not only admitted the existence of ' Morcha' but had even visited and inspected the same.
13. The witnesses could have alleged such firing as having originated from the ' Morcha' but in that case they would have seriously been faced with the problem of identification. They are not giving true, honest and straightforward narration of the occurrence. One witness says that all the assailants had come quiet from their houses up to the spot while the other witness says that they had constantly been making ' Lalkaras' suggesting the killing of the complainant party. The complainant party could have taken shelter behind the trees who are numerous in number on the spot but to avoid this they have completely denied the existence of trees except for one.
14. The two witnesses have materially contradicted each other qua the conduct of Shah Baraz, the father of the complainant. The complainant never knew as to what happened to the father after the occurrence. Despite the fact that he was fully conscious whereas P.W. Abdul Wadood says that he had come to the Police Station and had gone back to the spot alongwith the Investigating Officer. This also indicates that Abdul Qadir and Abdul Wadood were not present exact at one and the same place as it was already mentioned in case of the injured and the dead body. Had they been together, they would never have caused discrepancy regarding Shah Baraz who is the real father of the complainant.
15. The evidence of prosecution is such that it involves in its attempt, all the four assailants equally.
Even if the attempt of someone was not effective, he could be held guilty under section 34 of the P.P.C. And it could at the most be a mitigating circumstance qua the sentence imposed but the learned Trial Judge has clearly acquitted two persons and convicted the other two. The perusal and discussion of the evidence aforesaid is indicative of the fact that the narration is quite indivisible and the credibility of the witnesses as well as the investigation is also indivisible. If the two convicts are punished for the recoveries of empties, such recoveries are equally available against the acquitted accused as well. The evidence is so indivisible that if one is held guilty on the basis of such evidence, all can be convicted with the same amount of convenience. Similarly, if two can be acquitted, all the four can be acquitted with all the more convenience. In cases where the credibility of evidence is not divisible qua each accused, all are entitled to be treated alike.
16. The learned counsel for the complainant argued that it was a case of injured witness whose testimony should not be brushed aside so easily. No doubt that Abdul Qadir, in the instant case, was an injured witness but the injury of a witness can lead to the only conclusion that he was present on the spot and not at all to the conclusion that whatever he tells would be true as well.
The truth is to be seen under its own standards of appreciation of evidence in a criminal trial. What to talk of truth by an injured witness in the instant case, even his injury at the same place where the deceased got injured, is also doubtful.
17. The thing that remains to be answered is the abscondence alone. It is a known principle of law that in a case of doubtful evidence, the abscondence alone cannot lead to conviction specially when both the convicted appellants were Government servants and no police officer had gone to their place of duty and it was never brought on record if they were absent from duty and if any departmental action was taken against them.
18. As a result of the thorough appreciation of evidence, we are constrained to observe that it was a case of no motive against the deceased but sufficient for the involvement of the assailants. That the presence of the complainant party on the spot was highly doubtful and implausible and if at all they were so present, they have not described the occurrence in the manner to which it took place.
It seems that the prosecution has tried to intermingle two stories into one. We have no doubt in our mind that the case against the appellants is doubtful.
19. The above are our detailed reasons for which we had already recorded the acquittal of the appellant in our short order dated 7-11-1995.