' SARDAR FAKHRE ALAM, J.- Mir Kalam Khan and Noor Zaleem Khan, appellants, alongwith Mir Salam, Taj Ali Khan and Ajab Khan (the three acquitted accused) were tried by the Sessions Judge, Kohat under section 302/ 148/149 of the Pakistan Penal Code, with the allegations that all of them on 14th of April 1975 at Vivr qazawela' in the area of village Jangreezi Banda of Police Station Karak, while armed with fire-arms, formed an unlawful assembly, committed rioting and in the prosecution of the common object of that assembly murdered Muhammad Ayub Khan and Jalil Khan, deceased, who by his order dated 7-12-1976 convicted Noor Zaleem Khan and Mir Kalam Khan under section 302/34, P. P. C., on two counts, and sentenced them to death on each count, while accused Mir Salam, Taj All Khan and Ajab Khan were acquitted.
2. Mir Kalam Khan and Noor Zaleem Khan convicts have come on appeal to this Court against their convictions and sentences and there is also a murder reference for the confirmation of the death sentences of the two appellants. State had also filed an appeal under section 417, Cr. P. C. Against the order of acquittal in respect of Mir Salam, Taj Ali Khan and Ajab Khan, accused respondent, which is in motion. By this order we propose to decide all the three connected matters.
3. In short compass the prosecution story as revealed in the first information report lodged by Gulfaraz, P. W. 5, the first informant, at 2 a.m. On 15th of April 1975, in Police Post Thathi Nasrati, is that on 14-4-1975 at qazawela' the first informant had driven the cattle from the village to the water tank for watering them; that in the meantime Muhammad Ayub Khan and Jalil Khan, deceased, brought the camels in order to fetch water from the tank to the village; that close to the water tank was a heap of bricks, behind which Mir Kalam, Taj Ali Khan, Noor Zaleem Khan, Ajab Khan sons of Mir Salam and Mir Salam son of Shah Behram, residents of Jangreezi Banda, being armed with fire- arms, were already present. Gul Rauf Khan, P. W. 6, Mir Badshah, P. W. 7 and Zahir Ali Khan, P. W. 8, residents of his village, were also seen by him nearby on a path proceeding from Shinawa towards the water tank; that when Muhammad Ayub Khan and Jalil Khan, deceased after getting the water were on the way to village Jangreezi Banda that Taj Ali Khan and Noor Zaleem Khan accused fired at Jalil Khan, deceased; that with the fire of Noor Zaleem Khan, accused, the deceased was hit and dropped to the ground and expired there. Muhammad Ayub Khan was trying to run when in the meantime Mir Salam, Ajab Khan and Mir Kalam Khan, accused, fired at him and with the fire shot of Mir Kalam Khan the deceased was hit and after falling on the ground died there. All the five accused then ran away from the spot. The occurrence was witnessed by Gul Rauf, Mir Badshah and Zahir Ali Khan.
' The motive for the crime was stated to be that about 5/6 months ago Gul Rauf was fired upon by the accused but the matter was patched up privately and it was not reported to the police. Earlier to this also there was blood-feud between the parties and there had been cases of outraging the modesty of women and of beating between the parties.
4. In all, 12 witnesses were examined by the prosecution in support of its case at the trial, while the statement of Dr. Jandad Khan, who had conducted post-mortem examination on the dead bodies of Muhammad Ayub Khan and Jalil Khan, deceased, and recorded by the Inquiry Court on 7-8-1975 and certified under section 509, Cr. P. C. Was transferred to the file Sessions Court, as the witness was reported to be out of country and his personal attendance could not be procured without delay and unnecessary expenses.
5. Dr. Jandad Khan, who had conducted autopsy on the dead body of Jab! Khan, deceased, stated before the Inquiry Court that he conducted postmortem examination on the dead body at about 8 a.m. On 15-4-1975 and found the following injuries on external examination: ' Youngman of 30/35 years, rigor mortis present. P. M. Staining present.
(1) A fire-arm wound left chest about 1/2' below left clavicle, 1" in size circular (inlet).
(2) A fire-arm wound at the middle of medial boarder of right scapula, 1" xi' (outlet).
' On internal examination the doctor found that stomach was containing semi-digested food, colon found full of gases and faucal material, no bony fracture, and brain was healthy. Cause of death, in the opinion of the doctor, was injury to big vessels, lungs No, 1 and No, 2, bleeding sharp. Time between injury and death was instantaneous and between injury and postmortem 10 to 12 hours.
' The same doctor conducted autopsy on the dead body by Muhammad Ayub Khan at 8 a.m. On 15-4-1975 and found the following injuries on external examination:
(1) A fire-arm wound on neck just below left jaw involving both jaw neck left 3" x2" with irregular margins. Mandible left fractured. Teeth lower left jaw broken. Tongue injured. Cervical spinal card fractured (inlet).
(2) Two fire-arm wounds ' each in size, in circular approximate is separated from each other at left angle of mouth (outlet).
(3) A fire-arm wound right jaw 1/2 in size, almost circular has caused fracture of right mandible (outlet).
(4) A fire-arm wound outer angle of left eye circular (inlet), corresponding (outlet) just below left eye on cheek.
(5) A fire-arm wound right upper arm 3" above elbow-joint " circular (inlet). No corresponding outlet found. Pellet or bullet has probably come out through the same wound.
(6) A fire-arm wound top of nose (inlet) 1/4" circular causing fracture nasal septum.
' On internal examination the witness found brain healthy, stomach containing food particles semi- digested, except those mentioned, all bones were healthy. Death was caused according to the doctor, due to fracture of cervical spine, bleeding. Time between injuries and death was instantaneous and that elapsed between injuries and post-mortem was 10 to 12 hours.
' In his statement in cross-examination before the Inquiry Magistrate, the doctor opined that both the murders took place at one and the same time, that he found semi-digested food present in the stomach of both the deceased; that approximately two hours are required for the digestion process to make the food semi-digested; and that the death of Muhammad Ayub, deceased, according to him, occurred in-between 8 to 10 p.m. On 14-4-1975.
6. Mir Salam, the acquitted accused, it may be mentioned here, is the father of Mir Kalam Khan and Noor Zaleem Khan, appellants, while Taj Ali Khan and Ajab Khan, the acquitted accused, are also his sons. Gulfaraz, P. W. 5, is the brother of Jalil Khan, deceased and a cousin of Muhammad Ayub Khan, deceased. Gul Rauf, P. W. 6, is the son of Muhammad Ayub Khan, deceased, while Mir Badshah, P. W. 7, is a cousin of Muhammad Ayub Khan, deceased (Muhammad Ayub Khan deceased was the son of his maternal uncle). Zahir Ali Khan, P. W. 8, is also a distant `tarboor' of the first informant.
7. While examined in Court, Gulfaraz P. W.
5. Stated that on the day of occurrence he remained in the house and as usual did not go out for zamindara work as his right foot was injured. At 'peshin qazawela' he took the cattle for grazing to a place known as `dharak' situated close to the water tank of Jangreezi Banda and at Vivr qazawela' he drove them to the water tank to show them water. At that time, Jalil Khan and Muhammad Ayub Khan, deceased, also reached there, both of whom filled the buckets with water; placed the same on camels and started on their way back towards village Jangreezi Banda, which lies at a distance of half a mile towards the West of the water tank. The P. W. Also left the place alongwith the cattle and started towards the South of the spot, when the two deceased had covered a distance of about 200 paces from the water tank and were about 40 paces away from a flour machine's Kotha', all the five accused mentioned above appeared, armed with Topaks. They emerged from behind the heep of 'Kacha' bricks and on seeing them, both the deceased ran towards the flour machine's kotha. At that time, Mir Salam, accused, called out to his sons not to spare the deceased.
Noor Zaleem Khan and Taj Ali Khan, accused, then fired one shot each on Jalil Khan, deceased, who was hit and fell down, with the fire shot of Noor Zaleem Khan, accused. He further stated that Jalil Khan, deceased, was also hit with the shot fired by Taj Ali Khan. Then Mir Kalam Khan, Mir Salam and Ajab Khan fired one shot each on Muhammad Ayub Khan, deceased, who was hit and fell to the ground. Zahir Ali Khan, P. W. 8, at that time was present near the spot while Gul Rauf, P. W. 6, and Mir Badshah, P. W. 7, were coming on a path from Shinawa side and all these P. Ws. Had witnessed the occurrence.
8. As both the deceased had expired on the spot, the first informant, went to his house, arranged two 'cots' and came back to the scene of occurrence along with villagers. They lifted the dead bodies from the spot and carried them to the village. A man was deputed to bring a bus from village Shah Saleem Banda distant four and a half miles from Jangreezi Banda, the village of the deceased. After sometime, on the return of this person, the dead bodies were carried to the road side which is at a distance of three and a half miles from the village of the deceased. The bus arrived there after sometime and the dead bodies were then transported to Police Post, Thathi Nasrati, and reaching there at 2 a.m. Next day, he reported the matter vide the report, Exh. P. A/1.
9. In the same tone are the statements of Gul Rauf, P. W. 6, and Mir Badshah, P. W.
7. Zahir Ali Khan was produced, abandoned and tendered for cross-examination.
10. Taj Muhammad Khan, A. S. I., P. W. 9, stated that on 15-4-1975 he was present in the Police Post, Thathi Nasrati when the dead-bodies were brought there by Gulfaraz, P. W. And others, and at the instance of Gulfaraz he correctly recorded the report, Exh. P. A/1, who later on thumb-impressed the same in token of its correctness. The report was sent to Police Station, Karak and on the basis of which case was registered vide F. I. R., Exh. P. A. After preparing the inquest-reports and injury- sheets of the deceased, he sent the dead bodies for post-mortem examination under the escort of Gul Master Jan, F. C., to the mortuary at Karak. He then left for the spot and reached there at 7 a.m.
In the morning and prepared the site plan, Exh. P. B, at the instance of the eye-witnesses. Vide memo. Exh. P. C. He took into possession blood-stained earth from two places where allegedly Jalil Khan and Muhammad Ayub Khan, deceased, were done to death. From the spot he took into possession 2 empties of 12 bore, Exh. P. 2, 11 cardboards, Exh. P. 3, 10 wads Exh. P. 4, and two pieces of lead, Exh. P. 5, and sealed the same into different parcels. From point No, 4 shown in the site plan, Exh. P. B. He also recovered two empties of '303 bore. He recorded the statements of the eye- witnesses and on the arrival of Bostan Khan, S. I. P. W. 12, handed over the investigation to him.
According to this witness, Police Post, Thathi Nasrati is 12/13 miles while the main road is about one and a half or two miles away from village Jangreezi Banda. Shah Saleem Banda is at a distance of 4/5 miles from Jangreezi Banda, Police Post, Thathi Nasrati is connected by telephone with Police Station, Karak but often it remains out of order. The flour machine which is situate close to the scene of occurrence was not in operation during the days of occurrence, though he did find bags of wheat lying there, when he visited the same.
11. Bostan Khan, Sub-Inspector, P. W. 12, stated that on receipt of `murasila' Exh. P. A/1, he correctly registered a case vide F. I. R. Exh. P. A. On 15-4-1975 at 6 a.m. He arrested accused, Mir Salam, on 29- 4-1975 and Taj Ali Khan and Ajab Khan accused on 12-5-1975. He had also earlier initiated proceedings under sections 204, 87/88, Cr. P. C. Against the accused. As it was wheat harvesting season, he did notice some cut wheat crop lying in the threshing floor of Nek Muhammad. He denied to have examined Nek Muhammad or his son, Jan Khan of village Shinawa Guddi Khel, which according to him, was at a distance of 4 miles from Shah Saleem Banda. Shah Saleem Banda according to his statement, would be about 2 miles from village Jangreezi Banda.
12. Bashir Ahmad, A. S. I. P. W. 10, when examined stated that Noor Zaleem Khan and Mir Kalam Khan, appellants, surrendered before the District Magistrate and obtained bail and he only submitted supplementary challan against them on 16-1-1976.
13. Rehman Gul, F. C. P. W. 11, was entrusted with the search warrants under S. 204, Cr. P. C. Against the five accused and he searched for them in villages Shinawa Guddi Khel, Jangreezi Banda and other adjoining villages, but failed to trace them and as such returned the warrants unserved. He was also entrusted with the proclamations against all the accused, except Mir Salam, and after necessary compliance, he returned the same. In cross-examination he stated that all the accused jointly resided in one house and the people of this area often go for labour to Punjab.
14. The trial Court after examining the whole evidence on record came to a finding that as far as the case of Mir Salam, Taj Ali Khan and Ajab Khan, accused, is concerned, the witnesses have not spoken the truth and as such are not believable and in this regard he has referred to their statements, which contradict each other on material particulars, and acquitted them. But he believed these witnesses as, against Mir Kalam Khan and Noor Zaleam !Kb in, appellants, for the reasons that they were from the start attributed the role of firing effectively on both the deceased, as the shot fired by Noor Zaleem Khan with a '303 bore rifle hit Jalil Khan, deceased, and the one fired by Mir Kalam Khan with a '12 bore shot-gun, hit Muhammad Ayub Khan, deceased, which was supported by the recovery of two empty shells of 12 bore shot-gun and 2 empty shells of '303 bore rifle, from point No, 4, the place from where the appellants and the acquitted accused had allegedly fired. The medical evidence, according to the trial Court, also supports the case against the appellants inasmuch as Jalil Khan, deceased, had received a bullet injury whereas Muhammad Ayub Khan, deceased, bore shot-gun injuries.
15. The learned defence counsel vehemently argued that the order of the learned Sessions Judge in convicting the appellants is not sustainable on the evidence brought on the record for the reasons that the eye-witnesses were closely related to the two deceased and interested in the sense that admittedly there was blood-feud and serious cases with regard to outraging the modesty of the women-folk had taken place between the parties and as such the whole ocular evidence was not reliable, moreso, when the same witnesses on account of material contradictions in their statements were disbelieved with regard to the complicity of the three acquitted accused and while probing the ocular evidence the learned trial Court had found that the witnesses have materially contradicted each other, on their statements with a purpose and have indulged in exaggeration; that the recovery of 4 empty shells, 2 each of '12 bore and '303 bore, would in no way connect the appellants with the crime as no weapon from their possession was recovered; that a thorough scrutiny of the site plan prepared at the instance of the eyewitnesses, would negative the whole prosecution story; that the ascendance of the appellants, moreso when it has not been conclusively proved on the record, would not bring home the guilt to the appellants as usually people run away from the clutches of law on account of fear, whether named rightly or wrongly; that all the witnesses are chance witnesses who have been materially contradicted by the medical evidence on record; and that there is inordinate delay in lodging the F. I. R., which suggests that no one had seen the occurrence and sworn enemies were implicated in the crime purposely after full deliberation.
16. Adverting to the quality of evidence in this case, we find, that apart from the fact that admittedly all the witnesses are interested in the sense that they are related to the two deceased and have sworn enmity of serious nature with the accused, they have further in substance shifted their stands and narrated a different story at the trial from the one that was given in the F. I. R. Gulfaraz, P. W. 5, the first informant, had in the report ascribed effective shots to Noor Zaleem Khan and Mir Kalam Khan, appellants, by which both the deceased were murdered and the role of ineffective firing was given to Mir Salam, Taj Ali Khan and Ajab Khan, the acquitted accused. But Court, this P.
W. Materially changed his version and charged all the five accused for effective firing by stating that Noor Zaleem Khan and Taj Ali Khan accused had effectively fired at Jalil Khan deceased whereas Mir Salam, Ajab Khan and Mir Kalam Khan, accused, fired effectively at Muhammad Ayub Khan, deceased. Gul Rauf, P. W., in his statement has charged Mir Salam, accused, and his two sons, namely, Taj Ali Khan and Noor Zaleem Khan, accused, for effective firing on Jalil Khan, deceased, and that Mir Salam accused did not fire any shot at his father, Muhammad Ayub Khan, deceased, as alleged by Gulfaraz, the first informant The post-mortem report contradicts the witnesses in this regard as only one injury was found on the person of Jalil Khan, deceased, which in the F. I. R. Was attributed to Moor Zaleem Khan, appellant, alone. But in Court all the witnesses stated that Mir Salam's shot also hit Jalil Khan, deceased. The deposition of the three witnesses to the effect that accused, Mir Salam, on seeing the deceased exhorted his sons not to spare them finds no mention in the F. L R.
17. Explaining their presence on the spot, Mir Badshah, P. W. 7 and Gul Rauf, P. W. 6, deposed in Court that on the day of occurrence in the morning time they had gone from village Jangreezi Banda to village shinawa guddi khel, distant 2-1/2 miles, to one Nek Muhammad son of Jan Khan, for getting their sickles sharpened as it was wheat harvesting season. After getting the needful done, they started back to their village at 'peshin qazawela' and on reaching near the spot at `digar qazawela', they witnessed the occurrence. The first informant, Gulfaraz P. W. Stated in Court that as his right foot was injured, he was disabled to do zamindara work. For the reason he remained in the house and at `peshin gazawela' took the cattle for watering them to the cattle pond.
18. The explanation given by the witnesses for their presence on the spot at the crucial time seems to be necessitated by the fact that ordinarily they were not supposed to be present near about the scene of occurrence where the crime took place. And it appears to us to be a strange coincidence that all the three eye-witnesses, coming from different distances and directions, happened to be present close to the place of crime, when the same was being perpetrated.
19. The site plan, Exh. P. B. Prepared at the instance of the witnesses, would show that these murders have not taken place in the manner in which the witnesses want us to believe. According to it the accused, five in number, were shown to be present at point No, 4, from where they are said to have fired at the deceased. Previous to the firing, the deceased were at points 2 and 3 situate on the path proceeding from East to West when they were challenged by the accused. Jalil Khan, deceased, after having been confronted by the accused ran from points 2 to 5, up to a distance of 20 paces, when he was fired at by the accused and murdered there, while Muhammad Ayub Khan, deceased, ran from point No, 3 to point No, 6 and was hit with the shot of the accused and killed there. We are surprised to note that the deceased when challenged ran in the direction of the accused and not to any other side, which would not be a natural reflex of persons having fear of death. If the purpose was to find protection behind some construction, even then the deceased could have run towards the house of Nek Muhammad, shown by point No, 13, in the site plan, which was in the opposite direction to the place from where the accused had challenged and fired. It appears that the deceased most probably were proceeding on the path leading from North to South, close to point No, 4, where the assailants had taken cover and when challenged, they ran towards the North and were done to death at points 5 and 6. If this be the case, it knocks out the bottom of the prosecution case and goes a long way to suggest that the so-called eye-witnesses were not present and had not seen the occurrence.
20. According to the prosecution story, as set up in the F. I. R. Muhammad Ayub Khan, deceased, was effectively fired by a single shot, which stands contradicted by the medical evidence on the record as four entrance wounds of different dimensions have been found on his person, which would show that he was fired upon more than once.
21. Another important piece of evidence is the opinion of the doctor in this case, who has stated that both the deceased were done to death at one and the same time and he also found semi- digested food in the stomach of Muhammad Ayub Khan, deceased, and on its basis stated that he was done to death between 8 p.m. To 10 p.m. On 14-4-1975. In view of this medical opinion the value of the ocular evidence is reduced to a nullity.
22. The learned Sessions Judge was impressed in finding the appellants guilty for the offence by the fact that in the F. I. R. Both of them were given the role of effectively firing a shot on each of the deceased. We are of the view that it is humanly impossible, when according to the prosecution 2 or 3 persons were firing at a target, to determine as to whose shot hit it and the statement of the first informant in the F. I. R. To this effect that the two appellants had only fired effective shots at the deceased, is nothing but a tissue of lies. It appears to us that on account of enmity of serious nature between the parties, a story was cooked up wherein too wide a net was thrown by the complainant party to involve their sworn enemies, a father and his four sons, members of the same family, in this witnessed crime.
23. The matter in this case was reported after sufficient unexplained delay, i,e,, the occurrence is alleged to have taken place on 14-4-1975 at 'dip' qazawela' whereas the report was lodged on 15- 4-1975 at 2 a.m. At Police Post, That Nasrati, distant 12/13 miles from the spot. Police Station Karak is connected by telephone with the police post, but the case was not registered till 6 a.m. Though the Investigating Officer has endeavored an explanation to the effect that often the telephone remains out of order but this is not convincing. If Gulfaraz, P. W., the first informant, and the other witnesses were present and had seen the occurrence, the first informant could have straightaway gone to the police post to report the matter as three other persons were available on the spot to guard the dead bodies and there was no occasion for all of them to have delayed the matter in procuring a bus for carrying the dead bodies to the police post. The explanation given about the delay to the effect that the first informant, Gulfaraz, from the spot went to his village, Jangreezi Banda, half a mile from the spot and from there he brought 'cots' and villagers and carried the dead bodies to the village, and a man was then sent from the village to Shah Saleem Banda lying at distance of 4- 1/2 miles for arranging a bus to be brought to the road side, which is also 3-1/2 miles from the village of the deceased, but which, according to Taj Muhammad Khan A. S. I. P. W. 9, is about 1-1/2 or 2 miles away, and they carried the dead bodies to the road side; placed them in a bus; and then went to police post, is least convincing and appears to be a cooked one.
24. As a net result of the above discussion, we are of the view that the evidence is of interested nature, replete with discrepancies and contradictions, given by chance witnesses and is tainted and tenuous, which speaks of their mendacity. The medical evidence further materially contradicts the ocular account given by the prosecution witnesses with regard to the time of occurrence and the manner in which it took place. The delay has further fatally affected the credibility of the prosecution case. As such, we hold that the case against the two appellants for the murder of the two deceased has no been proved beyond a reasonable doubt and by accepting this appeal, we set aside their conviction and sentence of death on each count, and acqui them. They shall be set at liberty if not required in any other case.
25. In view of what has been said above, sentence of death passed upon the two appkants is not coairmed all the murder reference is, therefore, answered accordingly.
26. As a necessary corollary of our above finding, the State appeal under section 417, Cr. P. C., filed against the acquittal of Mir Salam, Taj Ali Khan and Ajab Khan, accused respondents, fails and is hereby dismissed in limine.