' KHALIDA RACHID, J.--- Salim, aged about 21 years, Kalim; aged about 19 years, and Khalid, aged about 29 years, sons of Ashraf Khan, residents of Yasin Abad, Tehsil and District Peshawar, were tried by the learned Additional Sessions Judge, Nowshera Camp. Peshawar, under section 302/ 307/34, P.P.C., for having committed the murders of Jamal Khan son of Zafar Khan Afridi and Rehman Gul alias Rehmanai son of Feroz Gul and murderous assault at Halim Khan, complainant.
The learned Trial Court vide order, dated 16-2-1994 convicted Salim and Kalim under the aforesaid provisions of law and sentenced them to death on two counts and fine of Rs,50,000 each, in default thereof to undergo R.I. For two years. It was further ordered that, half of the fine, if realised, be paid to the legal heirs of both the deceased, as compensation under section 544-A, Cr.P.C. Accused, Khalid, however, was acquitted of the charges for having been attributed no overt act. The convicts, being dissatisfied with the findings of the Trial Court, preferred instant Criminal Appeal No,45 of 1994. Murder Reference No,4 of 1994 is also made for the confirmation of the death sentences. Both, Criminal Appeal No,45 of 1994 and Murder Reference No,4 of 1994, are being disposed of by this single judgmont.
2. The prosecution case as unfolded at the trial is that on 12-1-1990 Halim Khan, complainant, alongwith Jamal Khan, Rehman Gul alias Rehmanai, Rahim Gul and Mehrab Gul were sitting inside the room of Sugarcane Crush Machine (Ghanai) in village Yasin Abad. Just before evening (Maghrib) prayer time, Salim and Kalim (appellants) arrived at 'Ghanai' duly armed. They altercated with Jamal Khan (deceased) for dumping the bagasse of sugarcane on their field. They also notoriously abused Jamal Khan and went back to their house. After a short while they returned in the company of their brother, Khalid, all of them duly armed. Khalid stood on the gate of the room of Crushing Machine (Ghanai) and ordered the two brothers (appellants) who by then had entered the 'Ghanai' to open fire. They accordingly followed the command of their elder brother resulting Jamal Khan's and Rehman Gul's death while seriously injuring Halim Khan, complainant.
However, Rahim Gul (P.W.6) and Mehrab Gul (P W .7) escaped unhurt. Report of complainant Halim Khan (not produced) was reduced into Murasila' (Exh.P.A./1) by Muzahir Shah, 5.-I. (P.W.13), on duty at Casualty Department of Lady Reading Hospital, Peshawar, on the same day at 18-55 hours. F.I.R.
(Exh.P.A.) on the basis of 'Murasila' was registered by Nasrullah Shah, H.C. (P.W.10) at Police Station Chamkani. Khalid (acquitted accused) was arrested the same day by Sultan Akbar, S.H.O. (P.W.12) who recovered .30 bore pistol with two spare chargers and a bandolier containing 25 rounds vide memo. Exh.P.B./5, while Salim and Kalim, appellants, surrendered to the Police on March 12, 1991, and November 12, 1991, respectively. Sultan Akbar, S.H.O. (P.W.12) investigate the case. He reached the spot after receiving a copy of the F.I.R., (Exh.P.A.) and prepared the inquest report (Exh.P.M./1) and injury sheet (Exh.P.M./2) of Jamal Khan, deceased, and injury sheet (Exh.P.N./2) and inquest report (Exh.P.N./3) of Rehman Gul, deceased, and despatched the dead bodies to the Hospital for post- mortem examination under the escort of Wali Muhammad and Jengrez, constables. He also prepared the site plan (Exh.P.S.) and took into possession blood-stained earth from three places (Exhs.P.1-3) vide recovery memo. Exh.P.B., recovered two spent bullets (Exh.P.4) vide Exh.P.B./1 and seven empties vide Exh.P.B./3. He submitted complete challan against Khalid (acquitted accused) and supplementary challan against Salim and Kalim (appellants).
Dr. Syed Mujahid Hussain (P.W.11) conducted autopsy on the dead bodies of the deceased persons.
On 13-1-1990 at 8-00 a.m. He performed post-mortem examination of deceased Jamal Khan and found the following:--- External Examination:
(1) Fire arm entry wound 1/4" x 1/4" in size on the left shoulder, 4" from the root of the neck and 2" medial to tip of the left shoulder.
(2) Fire arm exit wound 1" x 1/2" in size on the right side of the neck, 2" from the midline of neck and 3" below the right ear.
(3) Fire arm entry wound 1/4" x 1/4" on the left side of the chest, 5" below the left nipple and 7" from the midline.
' Pleurae, both lungs, pericardium and blood vessels were injured, Stomach was containing semi- digested food. Ribs fractured.
' In the opinion of the Doctor, the cause of death was severe haemorrhage and shock due to injuries to the vital organs such as heart etc. Caused by fire-arm.
' Upon post-mortem examination of Rehman Gul, deceased, following were found:--- External Examination:
(1) Fire arm entry wound 1/2" x 1/2" on the left cheek.
(2) Fire arm exit wound 3" x 2" on the right side of the neck, 2" below the right ear and 1" from midline.
(3) Fire arm entry wound 1/2" x 1/2" on the right side of the chest, 5" below the right axilla, and 4" from the right nipple.
(4) Fire arm exit wound 2", x 1 1/2" on the right side of the back, 3" from the midline and 5" above iliac bone.
(5) Fire arm entry wound 1" x 1/2" on the right side of the back, 5" from the midline and 3" above the iliac bone.
(6) Fire arm exit wound 3" x 2" on the right side of the abdomen, 3" from midline and 2" above the iliac bone.
(7) Fire arm entry wound 1/4" x 1/4" on the front of the left knee joint.
(8) Fire arm exit wound 1/2" x 1/4 on the medial side of left thigh, 5" above the knee joint.
Internal Examination: ' Walls, ribs and cartilages, pleura, both lungs and blood vessels were injured. Walls (abdominal), peritoneum, Diaphragm, small intestine, large intestine, lever, spline were also injured. Stomach containing semi-digested food. Ribs and left knee joint fractured.
' In the opinion of the Doctor, the cause of death was severe shock and haemorrhage to the vital organs such as lungs, lever etc. Due to fire-arm.
3. The accused, in their defence under section 342, Cr.P.C. Denied their involvement and claimed innocence but did not offer to make statements in their defence on oath.
4. The learned Additional Sessions Judge believed the testimony of eyewitnesses. The learned Trial Court held that though the fact that the eyewitnesses were the nearest relations of deceased Rehman Gul, yet there is no reason to discard their version who are natural and truthful witnesses.
Alsb relying on the circumstantial evidence, the learned Court held Salim and Kalim (appellants) jointly guilty of the offence of murders of Jamal Khan and Rehman Gul, deceased, and thus, sentenced them as aforesaid. He, however, exonerated Khalid (acquitted accused) of the charges on the ground that since he was empty handed and no overt act has been attributed to him, therefore, his mere presence at the scene of occurrence would not be sufficient to attract the provisions of section 34, P.P.C. Hence, he was accordingly acquitted. It may be observed that no criminal revision has been preferred against the acquittal of Khalid, accused.
5. We have heard the arguments advanced by the learned counsel for the parties and carefully scrutinized evidence and the other connected record.
6. Mr. M. Sardar Khan, Advocate, appearing on behalf of the appellants, claimed, first of all, that whole trial was vitiated by the failure of the prosecution to produce the lodger of the F.I.R., (Halim Khan). He argued that had the complainant been examined he would not have supported the prosecution version; therefore, adverse inference can be drawn against the prosecution for non- production of this witness. It was further urged on behalf of the appellants that since motive set forth by the prosecution could not be proved, therefore, it rendered the case highly doubtful specially when the eye-witnesses (P.Ws.6 and 7) also failed to stand the test of credibility who are not natural but chance witnesses.
7. On behalf of the complainant, Barrister M. Zahurul Haq, put forward the argument that non- production of the maker of F.I.R., under any circumstances would not adversely affect the prosecution case for the simple reason that F.I.R., is not a substantive piece of evidence and that prosecution is neither obliged to examine all the eye-witnesses nor is debarred from abandoning any eye-witness. As for the credibility of the eye-witnesses, Barrister M. Zahurul Haq submitted that there was no reason for both the eye-witnesses of falsely charge the appellants as they were neither related to Jamal Khan (deceased) nor inimical towards the appellants, therefore, they cannot be termed as interested witnesses merely being sons of Rehman Gul (deceased) a tenant of Jamal Khan (deceased). The learned counsel further urged that presence of the eye-witnesses at the spot are very natural as process of making 'Gur' is not the job of one or two persons but it required many hands in process of making 'Gur'. Regarding the motive, the learned counsel though conceded that motive was not established in the case but argued that it may not be necessary for the prosecution to set up a motive in every case.
8. We never intend to take an exception to the proposition that F.I.R., is not a substantive piece of evidence and non-production of lodger of the F.I.R., would be enough to detract the veracity of the prosecution case but this proposition would definitely matter where the other circumstances in the case fail to lend support to the prosecution story put forth in the F.I.R. Halim Khan, maker of the F.I.R., who is admittedly alive and working in Muscat refused to make himself available for the examination without giving solid reason for prohibiting him to pursue his case in Pakistan which leads to the doubts of the genuineness of the prosecution story. Furthermore, eye-witnesses Rahim Gul (P.W.6) and Mehrab Gul (P.W.7) when examined by the Trial Court did not present the consistent version of the prosecution case. According to Sultan Akbar, S.H.O. (P.W.12), an Investigating Officer, he reached the spot after receiving copy of the F.I.R., whereon he prepared the inquest reports of the two deceased and despatched the dead bodies to the Hospital for post- mortem examination, under the escort of Wali Muhammad and Jangrez, constables, while on the other hand Rahim Gul (P.W.6) deposed that Jamal Khan and Rehman Gul deceased who were hit with the fire shots of Salim and Kalim (appellants), respectively, succumbed to their injuries on their way to the hospital while being taken by them in their cars. It is also in the statement of Rahim Gul (P.W.6) that the dead bodies of the two deceased were removed to Police Station from the Hospital but astonishingly they did not care to lodge the report either in Hospital or in Police Station, especially when they admitted that Halim Khan (complainant) had not lodged the report in their presence. We also cannot ignore the other glaring contradictions in the statements of the eye- C witnesses. According to Rahim Gui (P.W.6) Police had accompanied them to the spot after about an hour whereas Mehrab Gul (P.W.7) deposed that police party reached the spot 15/20 minutes before their arrival. We are not impressed by the contention of Barrister Sahib that the aspect of preparing the inquest report at the spot by the Investigating Officer, could have been clarified from the witness (P.W.12 Sultan Akbar, Investigating Officer), at the trial. The Investigating Officer, was very categoric in his statement which did not require further elucidation.
9. The motive set forth in the F.I.R., is that complainant party, after extracting sugarcane juice from the sugarcane, threw the waste/bagasse in the field of the accused party but Rahim Gul (P.W.6) and Mehrab Gul (P.W.7) categorically admitted in the cross-examination that land of the appellants is situated at a distance of 700/800 yards from the 'Ghanai' in question. It is a fairly well- settled rule that once the prosecution has set up a motive, it is required to be established by it. If it failed to establish, it will adversely affect the credibility of the eye-witnesses.
10. According to prosecution story, Salim and Kalim, appellants, duly armed came to the 'Ghanai' and altercated with their uncle Jamal Khan on the issue of throwing the refuse of sugarcane in their fields. They went back and then, returned again after a few minutes in the company of their elder brother, Khalid (acquitted accused), who had commanded the appellants to open fire at the complainant party. Obeying their elder brother, they opened fire and committed the offence of killings. In other words, the leading part was played by their elder brother, Khalid, who has since been acquitted by the Trial Court and no criminal revision has been filed by the complainant party.
If the appellants had guilty intent or state of mind to murder the deceased, they would have committed the offence at the time of altercation since they were also allegedly armed even at that time. The innocence of Khalid declared by Trial Court being not challenged leads to a conclusion that the occurrence had not taken place in the manner described by the prosecution.
11. The ocular version also does not get support from the site plan. It is in the statement of Mehrab Gui (P.W.7) that at the time of firing all the inmates including him and his brother Rahim Gul (P.W.6) were sitting around the Athra' of 'Gur' at a distance of two/three feet from each other and were busy in making the balls of 'Gur'. A short glance at the site plan (Exh. PS) suggests otherwise. Jamal Khan is hit at point No,1 which is adjacent to the wall of ' Ghanai' whereas Rehman Gul is shown at point No,2 on the corner of platform (Chabotra). Similarly, Halim Khan, complainant, at point No,3 near point No,2 is shown on the 'Chabotra'. At points Nos.7 and 8 are Mehrab Gul (P.W.7) and Rahim Gul (P.W.6), respectively, at the opposite end of the ' Athra'. Distance between different points ranges from 14 feet to 33 feet.
12. Semi-digested food contained in the stomachs of both the deceased also casts shadow of doubt on the prosecution case. According to the prosecution, the occurrence took place at '
Maghribvela time' while presence of semi-digested food reflects that the incident had occurred at late evening after the deceased had taken their meals.
13. The case bristles with discrepancies and inherent infirmities, therefore, it is highly unsafe and unreliable to base the conviction on the evidence produced by the prosecution.
For the reasons given above, we, while accepting the appeal of the appellants, set aside the conviction and sentences awarded by the Trial Court vide order, dated 16-2-1992 and acquit them.
They are ordered to be released forthwith if not required in the other case. The Murder Reference is accordingly answered in negative.