1. ' Tayyub Hussain Shah aged 34 years and Alam Khan aged 25 years alongwith one Saif Ullah Khan aged 35 years were arraigned for trial in this case before Ch. Muhammad Ali Shad, Additional Sessions Judge, Mianwali who through judgment dated 8-5-1994 convicted Tayyub Hussain Shah and Alam Khan accused under section 302/34, P.P.C. and sentenced them to imprisonment for life each and pay a fine of Rs,30,000 each if recovered to be paid as compensation under section 544- A, Cr.P.C. to the legal heirs of the deceased and in default of payment of fine to further undergo R.I. for two years each while Saif Ullah Khan was acquitted of the charge vide the said judgment. The benefit of section 382-B has been given to the appellants.
2. 2.Feeling aggrieved the appellants have preferred to challenge their conviction and sentence through this criminal appeal while the complainant has filed a Criminal Revision No,345 of 1994 seeking enhancement of the sentence and fine awarded to the appellants. The acquittal of Saif Ullah Khan has neither been challenged by the complainant nor by the State. This criminal appeal and this criminal revision have been hard today and both shall be disposed of by this single judgment.
3. 3.The unfortunate occurrence took place on 22-6-1990 at 2.15 a.m. in the house of Muhammad Anwar Shah (deceased) situated m the area of Wandhi Ghund Wali within the jurisdiction of Police Station City Mianwali where the deceased was asleep. The occurrence was reported by Syed Athar Shah P.W.3 brother of the deceased to Muhammad Baldish S.I. (P.W.18) at the said police station on 22-6-1990 at 3.30 a.m. The F.I.R. is Exh.P.K.
4. 4.Briefly the facts of the case are that the complainant Syed Muhammad Athar Shah alongwith his brother Syed Muhammad Anwar Shah (deceased) were asleep in the courtyard of the Baithak of the house and at about 2.15 a.m. that night the complainant suddenly heard the report of the gun fire. Upon which he woke up and saw that his brother Muhammad Anwar Shah was soaked in blood. He heard movements of the culprits running away along the western wall. The complainant opened the door of the Baithak and came out in the street. There he saw two unknown persons running away in the street towards south. He raised alarm, chased them but the culprits taking advantage of darkness of night fled away. The complainant returned and found that his brother Muhammad Anwar Shah had received fire-arm injury on the front side of his chest and had succumbed to it. The assailant had climbed over the wall by placing a ladder alongside the western wall and therefrom, the shot was fired. The accused while running away had left the ladder and an empty cartridge of .12 bore gun at the place of occurrence. The accused persons had murdered the deceased under a well-thought of plan for nothing. The complainant . is professor in Bhalwal College and resides outside Mianwali since many years and, therefore, was not in a position to mention in the F.I.R. that with whom the deceased had enmity etc. He would bring to light after knowing about it. After leaving the dead body at the place of occurrence in the care of Tahir Muhammad Shah and Rashid Anwar, his nephews, he reported this matter at the Police Station City Mianwali which is 2-1/2 furlongs from the place of occurrence.
5. 5.The police on arrival at the spot prepared injury statement Exh.P.Q. and inquest report Exh.P.R. in respect of the dead body of Muhammad Anwar Shah and despatched the same to the hospital for post-mortem examination. In the course of spot inspection police secured blood-stained earth, it was made into a sealed parcel and taken into possession vide memo. Exh.P.L. Blood-stained cot Exh.P.3 and blood-stained pillow Exh.P.4 were also taken into possession vide memo. Exh.P.M. A crime empty Exh.P.6 and a ladder Exh.P.5 left by the accused of the place of occurrence were also taken after making crime empty in a sealed parcel into possession vide memo. Exh.P.N. All these memos. were attested by Muhammad Athar Shah (P.W.13), Mian Aziz Ullah (given up P.W.) and Muhammad Bakhsh (P.W.18). Alam Khan appellant and Saif Ullah Khan accused were arrested on 17-3-1991 by Muhammad Bakhsh (P.W.18) while Tayyub Hussain Shah appellant was arrested on 24-2-1993. On 2-3-1993 while in police custody he led the police and got recovered .12 bore gun Exh.P.2 from an iron box lying in his residential house. It was made into a sealed parcel and taken into possession vide memo. Exh.P.B. which was attested by Hakim Khan (P.W.5), Javed Iqbal was not produced and Ikram Ullah A.S.I. (P.W.15).
6. 6.It would be relevant to mention here that the crime empty was sent to-the Forensic Science Laboratory, Lahore where it was received on 24-6-1990 while .12 bore gun was received in the Forensic Science Laboratory, Lahore on 7-3-1993. The report of the fire-arm expert of the Forensic Science Laboratory, Lahore is Exh.P.V. who has opined that the crime empty (P.6) wedded with this .12 bore gun (P.2). Tayyub Hussain Shah and Alam Khan appellants were declared proclaimed offenders. After completion of the investigation the challan against the appellants was sent up in Court.
7. 7.Dr. Sher Ali Khan, M.O., D.H.Q. Hospital, Mianwali appeared as P.W.16 who stated that on 22-6-1990 he performed autopsy on the dead body of the deceased and found the following injury on his person:-- "(1) A fire-arm wound 6 cm x 3 cm, 1 cm below and lateral to left nipple. It was oval in shape and in a single mass. The edges were irregular and fat was coming out of the wound. Edges were not blackened nor there was any tattooing. The track of the wound was going obliquely from left to right and posteriorly and slightly upwards."
8. In his opinion death occurred due to damage to the vital organs, haemorrhage and shock. The injury was ante-mortem and sufficient to cause death in the ordinary course of nature. Time between injury and death was instantaneous and that between death and post-mortem was eight hours.
9. 8.To prove the charge, prosecution has produced as many as 18 witnesses. The accused were examined under section 342, Cr.P.C. and they have denied the prosecution case and stated that they have been falsely implicated in this case. All of them opted to produce defence evidence but then only Alam Khan accused produced Mehmood-ul-Hassan Shah D.W.1 whereby it was established that he appeared as witness in a judicial inquiry held by Mr. Fazal Abbas Maikan, Assistant Commissioner, Mianwali inquiring into the cause of death of one Ahmed Khan while in police custody.
10. 9.With the assistance of the learned counsel for the appellants I have perused the entire record of this case and have been taken through the entire evidence recorded by the learned trial Court.
11. Learned counsel for the appellants and the learned counsel for the State and the learned counsel for the complainant have also been heard at length. All pro's and con's of the case have been probed and appraised.
12. 10.Tayyub Hussain Shah appellant made an extra-judicial confession on 3-10-1990 before Mian Gul Muhammad (P.W.9) and, thereafter, he was not available to the police till 24-2-1993. His absconsion stands established through the evidence of P.W.11 and P.W.12 whereby he was declared a proclaimed offender. Learned counsel for this appellant has vehemently impressed upon this Court that this confession is a joint one and was made in the house of one Mumtaz who has not been produced, thus, loses its credibility and cannot be made basis for conviction. To rebut the evidence of absconsion the leanred counsel has stated that the appellant was not aware of any case in which he was required. Although from the address given by him in his statement under section 342, Cr.P.C. he states himself to be a resident of same locality as that of the deceased. The contention of the learned counsel as to whether the extrajudicial confession was an independent or joint one was judiciously assessed and it was found that though the three persons are said to have come together to the Dera where P.W.9 was sitting with Mumtaz Hussain P.W. yet each person individually and separately made his confession on that day and thus cannot be said to be a joint confession. It was further stressed by the learned counsel that the evidence of P.W.9 has been disbelieved qua Saif Ullah Khan and thus cannot be believed against the present appellants. So far as Saif Ullah Khan accused is concerned it was a totally different set of allegations against him and his case was quite distinguishable to that of the appellants. Thus, the evidence of a witness can be sifted and believed where it is corroborated by other material evidence.
13. 11.Tayyub Hussain Shah appellant was arrested on 24-2-1993 and he got recovered a .12 bore gun on 2-3-1993 which was found wedded with the crime empty taken into possession by the Investigating Officer when he visited the place of occurrence on 22-6-1990 and this fact has been established vide report Exh.P.V. of the Forensic Science Laboratory, Lahore. The learned counsel has challenged this recovery as the same to have been made from a place jointly owned and not in the exclusive possession of the accused and also that the witnesses from the locality were not associated in the recovery proceedings. In rebuttal it has been argued that the place of recovery was the residential house of the accused who being the master of the house it was exclusively in his domain and control and that further the place where the gun was concealed was solely in the knowledge and control of the appellant and to prove such recoveries the requirement of law is just that there should be two respectable persons of unimpeachable and unblemished character to witness the recovery. Evidence of a police officer can also be considered to be that of a good witness unless and until enough material is brought on record to show that his evidence is not worth reliance and ought to be rejected outright.
14. 12.The learned counsel for Alam Khan appellant has submitted that the case against Alam Khan appellant stands entirely on a different footing from that of Tayyub Hussain Shah. He is not resident of this village and no evidence has been led to show him to have anything in common with Tayyub Husain Shah co-accused to join hands in the present occurrence. It is admitted in evidence of P.W.17 that some police officers were convicted for having tortured to death a person in their custody. It is through the evidence of D.W.1 established that Alam Khan appeared as a witness in that judicial inquiry held by the Assistant Commissioner for the death of that person. Alam Khan has not been attributed any injury to the deceased nor any incriminating article has been recovered at his instance and even in the extra-judicial confession he is only said to have held the ladder to facilitate Tayyub Hussain Shah appellant to climb and fire at the deceased. The ladder was placed against the wall which is eight feet high and even under normal circumstances when a ladder is placed alongside a wall of this height it is not necessary for any person to hold it steadly.
15. Thus according to this confession Alam Khan was there only to hold the ladder cannot be considered worth reliance. As far as the evidence of absconsion against Alam Khan is concerned, the argument that he was not aware of being required in any case can be accepted as he was not a resident of that locality nor of the immediate locality and, thus, remained unaware. Lastly the possibility that the police may have taken revenge by implicating him in this case for appearing as witness against their brother police officers cannot be ruled out.
16. 13.Thus, from the above discussion it is evident and abundantly clear that the case against Tayyub Hussain Shah appellant stands proved beyond reasonable doubt while the case against Alam Khan when considered against this backdrop of what has been said earlier it appears to be a case where the benefit of doubt can aptly be applied as it is a case which is full of infirmities and there exist certain circumstances which tend to show his non-participation in the occurrence and is not corroborated by any incriminating evidence. Resultantly, the appeal of Tayyub Hussain Shah appellant is dismissed. The conviction and sentence awarded to Tayyub Hussain Shah by the learned trial Court are upheld. The appeal of Alam Khan is accepted. The conviction and sentence awarded to Alam Khan appellant by the learned trial Court are set aside and he is acquitted of the charge and ordered to be set at liberty if not required in any other case immediately.
14. From the discussion of the evidence, the other facts, the flow of the reasoning recorded in the earlier paras. of this judgment, there are no reasonable grounds to enhance the conviction and sentence of fine awarded to the respondents in this revision petition which is hereby dismissed in limine.