' SARDAR MUHAMMAD RAZA, J.---Khawaja Ahmed and Mashal Khan sons of Sheikh Hasan; Mir Ahmed, Karamat Khan and Habibullah sons of Khawaja Ahmed Khan of Nara Jhanda Khel District Karak are charged under section 302/324/148/149, P.P.C., Vide F.I.R. No,8, dated 26-1-1993 of Police Station Takht Nasrati for the murder of Zardad Khan and for the attempted murder of Saleem Khan complainant and his brother Gul Raees; after forming themselves into an unlawful assembly and in prosecution of their common object aforesaid.
2. Mir Ahmed Shah and Habibullah are still absconding while Khawaja Ahmed, Mashal Khan and Karamat Khan were tried on the above charges by learned Sessions Judge Karak who, vide judgment, dated 7-9-1994 acquitted the three accused under trial under section 324/149, P.P.C. But convicted them under sections 302 and 148 of the P.P.C. On such conviction, they were sentenced to imprisonment for life under section 302/149, P.P.C. In addition to a compensation of Rs,15,000 each which was to be paid to the legal heirs of the deceased, in default of the payment whereof they were to suffer four months simple imprisonment. They were further convicted under section 148, P.P.C. And sentenced to suffer six months rigorous imprisonment each. They were granted benefit of their detention, under section 382-B, Cr.P.C.
3. The three convicts have come-up in appeal (No,239 of 1994) while Saleem Khan complainant has filed Criminal Revision No,5 of 1995 for the enhancement of sentence/compensation. The revision shall be decided also through this single judgment.
4. It was on 26-1-1993 that the deceased Zardad Khan alongwith his two sons Saleem Khan and Gul Raees had come to attend the Court of E.A.C. In Karak City. Having attended the Court, they were to return home and hence came to a Bus Stop near graveyard waiting for the conveyance. At 1445 hours Khawaja Ahmad, Mashal Khan, Karamat Khan appellants and Mir Ahmed and Habibullah absconders appeared on the scene duly armed with fire-arms and opened indiscriminate fire at Zardad Khan with which he got riddled with pellets/bullets and died on the spot. Saleem Khan and Gul Raees, his sons being available close-by, were also fired at by all the assailants but they escaped unhurt. The accused decamped from the spot while the dead body was taken to the Police Station where the F.I.R. Was lodged and thereafter, the dead body was sent to the mortuary for Post-mortem examination.
5. Pir Nawaz Khan S.-I., on the information received from the people, allegedly chased the appellants Khawaja Ahmed and Mashal Khan who both were arrested from the mountains alongwith one shotgun each from each of the accused. The shotguns were duly licensed in the names of Khawaja Ahmed and Mashal Khan. He also arrested Karamat Khan appellant the next day i,e,, on 26-1-1993. Karamat Khan was also injured on his foot by fire-arm and the injury was accompanied by blackening and burning.
6. Various recoveries like blood-stained earth, two empties of .12 bore etc., were made by the Investigating Officer in routine but the important one of the recoveries was Exh.P.C./3 vide which Pir Nawaz Khan (P.W.9) recovered two shotguns from the appellants Khawaja Ahmed and Mashal Khan in the presence of two witnesses named LHC Muzafar Shah and LHC Zahidullah. This being the relevant over view of the case of prosecution, we would now appreciate the evidence led through by the learned counsel for the parties and Mr. Riaz Ahmed Khan learned A.A.-G. For the State.
7. The occurrence is supported by the ocular testimony of Saleem Khan and Gul Raees who are the real sons of the deceased. They are closely related to the deceased. Mere relationship does not go to weaken the testimony of a witness but the aspect withheld by the prosecution is that both the sons are as inimical to the accused party as their father was. Rather, an F.I.R. No,52, dated 30-3-1991 is pressed into service, indicating direct enmity of the accused party with Saleem Khan complainant and Gul Raees, his brother. The F.I.R. Was lodged by one of the accused Mir Ahmed who is still absconding. It stands proved that the two alleged eye-witnesses are certainly inimical towards the accused party. Their testimony, therefore, requires to be strongly corroborated by other circumstantial evidence.
8. Any prudent mind, in the circumstances, would seek for the evidence that might lend support first, to the presence of the two witnesses on the spot. What made all the three to be present together was their appearance before the Court of E.A.C. Karak. The appearance of even one of them would be sufficient and we would presume that the remaining two accompanied the third in routine. It is pertinent to observe that except for the bare statements of the two witnesses there is no evidence to the effect that they or any of them had at all attended the Court. The occasion for their being together is highly doubtful.
9. All alluded to above, the two witnesses, in addition to their father, had direct enmity with the assailants. The father was fired upon but the two witnesses were spared for no ostensible reason at all except that they be allowed to appear as witnesses against them. It is again surprising to note that almost all of the five appeared to be armed with shotguns and they had practically fired at both the witnesses. It does not appeal to reason that from such a short distance of 7/8 paces, five persons would miss the targets and that too with shotguns. The absolute escape of the witnesses unhurt is unnatural as well as highly improbable.
10. We are persuaded to infer that the learned trial Judge also was not sure of the presence of the two witnesses because he acquitted the appellants under the charge of attempted murder. We need to point out that even if the attempt was ineffective, it could have amounted to an attempted murder. The presence of the witnesses is, therefore, seriously doubted.
11. The deceased was accompanied by two companions no less than his own sons yet they have unanimously stated that to the Hospital they had not accompanied the dead body of their father.
This again is highly unnatural particularly when the distance between police station and the hospital is hardly about 100 yards. They could have told a lie as well regarding their going to the hospital but then in that eventuality a question could have been asked as to why being real sons they failed to identify the dead body of their father at the time of post-mortem examination. Simply to avoid this question they altogether denied their having accompanied the dead body of their father to the hospital. Rightly so, because had they been There with their father, they would have certainly gone to the hospital.
12. The witnesses abovesaid as well as the Investigating Officer have admitted that the occurrence was witnessed by many other people who were present around the spot and had immediately come close to the dead body after the occurrence. It is also admitted that such witnesses had narrated the occurrence to the Investigating Officer but their statements were never recorded. We strongly feel that such statements if recorded, would have gone against the story of prosecution and would have negated the presence of the alleged eye-witnesses. Having minutely considered all the attending circumstances of the case, we have come to unescapable conclusion that the so-called ocular testimony of the alleged eye-witnesses has utterly failed to receive any support from the circumstances or from any independent and unimpeachable source.
13. We feel confronted with a few other facts which do not inspire confidence. First of them is the arrest of Khawaja Ahmed and Mashal Khan appellants, alongwith the recovery of one shotgun from them each. We should not forget that the instant one is a case of the common object of not one or two but of more than four persons who, in prosecution of such object, formed themselves into an unlawful assembly. It is to be appreciated that there is a lot of difference between common intention defined under section 34, P.P.C. And common object defined under section 149, P.P.C. The former can be developed even at the spur of the moment but the latter can never. The lesser the people together, the greater are the chances of developing common intention in the shortest and quickest possible time while the minds of five or more than five persons cannot react together (excepting mob psychology in some cases) suddenly in unison, without their having made preparations and having thought out the whole plan.
14. What we intend to bring home is that five accused in the present case if had assembled together to kill Zardad Khan at such an open public place, they would certainly have not failed in making a successful escape plan. They would most certainly arrange for a vehicle immediately if not engaged already and hence would conveniently make good their escape. Amazing it is to note that Khawaja Ahmed and Mashal Khan did not carry the intelligent mind of a criminal and started running towards mountains. It is also not proved to our satisfaction as to how the Investigating Officer, with considerable duration received information of the flight of Khawaja Ahmed and Mashal Khan towards the mountains. It is also not properly fitting in the story that when they reached the mountains, they found the two appellants with utmost convenience like lost bulls. This is also highly improbable that the two accused whose purpose was to run away at all costs would surrender to the police without any resistance despite having been fully armed and ammunitioned.
In the given circumstances though they might not have liked to resort to killing the chasing party but they could have kept them at a fairly safe distance without being fallen to their hands like sitting ducks. The arrest of the appellants shown to have been done in a chase soon after the occurrence also seems to be unnatural and false. They were not arrested in the circumstances as alleged by the prosecution but instead were arrested in the circumstances which were never incriminating.
15. One of the witnesses namely Atlas Khan (P.W.1) has categorically stated that when the dead body was being brought to the police station, it was also accompanied by two police officials meaning thereby that the police had already reached the spot after the occurrence but no report was recorded though the eye-witnesses were available. Page 3 of inquest report Exh.P.W.8/2 would suggest that the Investigating Officer failed to give the short background of the case in the relevant space. This brings us to another conclusion that by the time the inquest report was prepared, there was no story before the Investigating Officer in the shape of F.I.R. And if so, it was suppressed in order to make-up the deficiency wherever required. Thus, the F.I.R. Was recorded after preliminary investigation. It is supported by another fact that in broad daylight occurrence the two witnesses who had even counted the number of shots of all the five assailants and the directions thereof in perfect details, had utterly failed to give the type of weapons possessed by the accused particularly when there should have been no difficulty in identifying shotguns. Subsequently when the post-mortem was conducted, some bullet injury was found and, thus, an improvement was done at trial, of attributing a .30 bore pistol to Karamat appellant. The investigation also was not up to the mark.
16. For what has been discussed above we hold that the ocular testimony of related, interested and inimical witnesses has not been supported by any other independent and unimpeachable source.
The presence of the eye-witnesses is highly doubtful and the investigation was not conducted in a manner above board. Being given the benefit of doubt, the appeal is hereby accepted, the connected Revision Petition No,5 of 1995 is hereby dismissed, the impugned convictions and sentences recorded by the learned Sessions Judge Karak are set aside and the appellants Khawaja Ahmed Khan, Mashal Khan and Karamat Khan are hereby acquitted of the charges under section 302/148/149, P.P.C. If not required to be detained in any other cause, they are directed to be released forthwith.
' This acquittal, however, shall not affect, in any manner whatsoever, the case of absconding accused Mir Ahmed and Habibullah, whenever arrested and brought to trial.