' SARDAR MUHAMMAD RAZA KHAN, .1:---This is an appeal filed by Tameez Khan convict against the judgment, dated 31-7-1995 of the learned Additional Sessions Judge, Kohat hereby, on the charge of committing the murder , of Muhammad Umar son of Kamal Khan, the appellant was 'convicted and sentenced to imprisonment for life with a fine of Rs,30,000 in default of payment of which he was to suffer further imprisonment for two 'years. Half of the fine, if realised, as the Judge observed, was to be pai4 to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C.
2. On the other hand, Mirsal Khan complainant has filed Criminal Revision No,97 of 1995 whereby he- seeks the enhancement of sentence to death as normal penalty and also to the enhancement of compensation under section 544-A, Cr.P.C.
3. It was on the forenoon of 3-1-1991 when Mirsal Khan son of Kamal Khan of Village Dhoda, Kohat along with his brother Muhammad Umar alias Batal started for their fields. At 10-00 hours when they reached the land of a co-villager named Fateh Khan, the appellant Tameez Khan armed with a rifle-gun appeared on the scene and opened repeated fire at Muhammad Umar with which he got hit and died on the spot. The occurrence was said to have. Been witnessed by another Musa Khan son of Bilal Khan as well who had been following the two brothers. Previous bloodfeud is disclosed to be the motive for the occurrence.
4. Mirsal Khan and Musa Khan probably with the help of other villagers as well, took the dead body directly to Police Station Sadar, Kohat in a Suzuki where Mirsal Khan lodged a report to the above effect, which was entered in the relevant register at Serial No,2. Abbas Khan, A.S.I. Police Station Sadar who had recorded the report. Proceeded to the spot. He had already Prepared the injury sheet ExII.PD, inquest report Exh. PD/1 and had sent the dead body for post-mortem examination. At the instance of the eye-witnesses, he, prepared the site-plan Exh. PB and in prcsence of the witnesses he collected blood-stained earth vide memo. Exh.PC/I. The accused remained an absconder for a long time till arrested on or about 9th of June, 1992 whereupon supplementary challan was submitted.
5. Before the trial Court Tameez Khan pleaded not guilty. Material witnesses examined, inter alia, were Malik Ayub (P.W.4) in whose presence blood was collected from the spot, Mirsal (P.W.5) the complainant, Musa Khan (P.W.6) the second eye-witness. Abbas Khan (P.W.7) the Investigating Officer and Dr. Muhammad Safdar Khan (P.W.8) who conducted autopsy on the dead body. The accused denied all the charges when examined under section 342, Cr.P.C. And refused to be examined as his own witness. At the conclusion of the trial the learned 'Additional Sessions Judge was of the view that case of the prosecution stands proved through the ocular testimony of two eye-witnesses duly supported by the postmortem report, the motive ' as well as considerable abscondence of the accused. The same line of argument was adopted by Mr. Muazzam Jamil learned counsel for the State and Mr. Abdus Salam Qureshi, learned counsel for the complainant.
Normal sentence of death was avoided by Mr. Azar Khan Naseem learned Additional Sessions Judge, Kohat because, according to him, the motive was not very strong.
6. Before adverting to the factual details of the case, it may be pointed at the very outset that the learned trial Judge has passed an illegal order by passing a joint order regarding fine as well as compensation. Both the matters flow altogether from two separate sections of law; one being under section 302 P.P.C. While the other being under section 544-A, Cr.P.C. And, therefore, cannot be mixed up together. Fine is a punishment while amount under section 544-A, Cr.P.C. Is a compensation, both entail different consequences and different mode of recoveries in case of default. The manner of imposing fine under section 302, P.P.C. And awarding compensation under section 544-A, Cr.P.C. Requires to be altered in case the conviction is upheld.
7. The second illegality is with regard a the mitigating circumstance under which the normal penalty was not awarded and the appellant was sentenced to imprisonment for life. The learned trial Judge decided to take lenient view because, in his words, motive for the offence was not so strong to give death penalty. This is a novel conclusion 8 drawn by the learned trial Judge giving an indication to the people that they may kill if the motives are weak but should avoid killing when the motives are strong. We have been alive to certain circumstances where the strength of motive was most likely to be taken, in the circumstances of the case, as mitigating circumstance but the weakness of a motive should never be a factor calling for reducing the sentence from the normal penalty. This aspect needs also to be taken care of in case the conviction is upheld.
8. Coming to the factual aspect of the case, I, for one, have observed a few facts so loud and clear that despite effort, I could not disentangle my mind therefrom. Usually and oft repeatedly, as the proverb goes, men may lie but the circumstances do not. This phenomenon has exhibited itself with such a marked intensity that every time that it was thought over, it became more and more thought-provoking.
9. To appreciate the unavoidable, one should refer to the post-mortem report of deceased Muhammad Umar indicating his injuries as follows:--
(1) Fire-arm entry wound 1/4" in diameter present on the center of tire forehead. No charring marks.
(2) Fire-arm entry wound 1/4" in diameter present 1" below the medial margin of the right eve.
(3) Fire-arm exit of wounds Nos.1 Ind 2, with a size of 4" x 2" present on the left posterior lateral aspect of the back of the neck. 2" posterior to the left egr. Brain matter with bone pieces coming out through it
(4) Fire-arm entry wound at the back which is 4" to the right of 4th lumber vertebra. 1/4" in diameter.
10. All the four injuries reproduced above are to be simultaneously kept in view in order to appreciate what irritates me. Injury No,1 is on the centre of the forehead, while Injury No,1 is an entry wound on the center of the forehead, Injury No,2 is another entry wound 1" below the medial margin of the right eye. The distance between these two entrance wounds is 2-1/2 inches. This happened to calculate by different measurements because the only document indicating the locale of the injuries i,e, skiagram with the post-mortem report, is missing. It has come in the as well as in the statements of the eye-witnesses in categorical terms that the assailant had used a rifle gun (Golidar Bandooq) in the occurrence. It is a matter of common knowledge that the rifle is operated with a bolt action and every time when the trigger is pulled, the bolt is pulled back to eject the empty and to reload the second cartridge from the magazine. This action when repeated, takes at least five/ten seconds. If the fire hit the target in the forehead causing an exit wound with a size of 4" x 2" on the left posterio lateral aspect of the back of the neck and was so forceful that the brain matter and bone pieces came out of it, it would be the most difficult thing on earth to believe that the victim would not instantaneously fall down to the ground. If the assailant in these circumstances pulls the bolt to eject, reload, aim and then fire; it is again something impossible on earth to believe that the second fire would hit only 2-1/2 ,inches away from the first entry wound.
11. By drawing the above sketch, I want to bring home that with a bolt action rifle, an assailant firing from a distance of 20 to 24 paces cannot cause, with a repeated fire, two injuries so close to each other. Both injuries are so devastating and so close to each other that they cause one exit through the brain at the back side. Only and only an automatic weapon can cause such injuries and that too when such weapon has the repeating velocity of a kalashnikov. I have a firm belief that in the instant case, whoever was the assailant, had used an assault rifle like kalashnikov and whatever happened in the case in hand, could never happen with a rifle gun operated with bolt action. If hundred witnesses say so, they are bound to tell a lie against strong and material circumstances that happened to happen. I hold that the complainant Mirsal Khan and his maternal uncle Musa Khan, the so-called eye-witnesses, were not at all present on the spot and had tried to make mistaken conclusion after seeing the dead body.
12. I am fortified in my conclusion by so many other circumstances. The closeness of the injuries decidedly caused by an automatic weapon being near to the eye also had caused such a confusing damage that someone even suspected something like powdered material in or around the wound for which it was specifically opined by the doctor that it carried no charring marks.
Obviously, when there are no charring marks, there is no need to write that there are no charring marks. If one presumes that the doctor is in the habit of being meticulous, he ought to have written, "no charring marks" against Injury No,2 as well." It appears that something appearing on the spot during post-mortem examination was negated merely to justify the distance between the deceased and the assailant.
13. The injuries under discussion seem to have baffled every one despite the presence of two so- called eye-witnesses. It, for the first time, confused the Investigating Officer who at the very first instance while preparing the injury sheet Exh.PD gave no description of the wounds at all despite the fact that the injury sheet in specific is meant for it. The Investigating Officer was even not clear when he prepaid the inquest report because in column No,10 thereof, he failed to give any description of any injury .
14. If we take the version of the so-called eye-witnesses, the assailant after repeatedly firing 3 to 4 shots at the deceased, immediately took to his heels and ran away towards his house. The deceased and the witnesses remained at the spot yet no empty was at all recovered from the spot giving a clear indication, firstly, that even the occurrence had not taken place on the spot alleged by the witnesses and, secondly, the witnesses were not present there.
15. There is a suggestion from the defence side that the deceased was gambling in the nearby graveyard and was there killed by somebody under circumstances altogether different from the one put forth by the prosecution. This suggestion also seems to be more than reasonable because while preparing the inquest report Exh.PD/1 and while filling in Column No,1, about the place of occurrence, the Investigating Officer had first written the word 'Qabristan' but subsequently crossed it and substituted it by "Arazi Fateh Khan Sakna Dhoda". The Investigating Officer has admitted having written 'Qabristan' first but failed to furnish any explanation as to how come he happened to write 'Qabristan' instead of the land of Fateh Khan when the two places are quite different and quite apart. I am convinced further that the occurrence has not taken place on the spot alleged by the prosecution and that the two witnesses produced to furnish ocular testimony were not present on the spot, It seems that whatever be the occasion where the deceased was sitting, he developed some trouble with someone. The assailant fired the first shot at the back entering 4" to the right of fourth lumber vertebra damaging the right kidney with which he fell prostrate and thereafter, the assailant fired two consecutive shots on the face that caused Injuries Nos.1 and 2. This could have happened even with a semi-automatic weapon.
16, The second scenario for explaining the injuries can be, that whatever be the spot and occasion, these were caused by fully automatic weapon, otherwise, Injuries Nos. And 2 can never possibly be so close. On a moving target.
17.. Faced with this situation pointed out by me, learned counsel .For the complainant explained that the victim was standing and facing towards the assailant when the first shot was fired. That, when once a message is conveyed by the brain to other parts of the body, it is obeyed even after the passage of a few seconds and the bodies do move for a few paces even if the head is blown out. The principle of the message given by the brain and the compliance thereof by other organs of the body, for a few seconds even after the impact; is fully agreed upon by me but in the instant case the circumstances are quite the reverse. The deceased, according to the prosecution story was already in the process of walking on the spot (which is not a path either), meaning thereby, that his body was complying with the message of walking, already delivered by the brain. In this situation he should have been in the process of movement and not staying still so as to receive another bullet of the assailant to prove the latter as a real marks man who can hit a target with consecutive fire causing entry wounds so close to each other.
18. After eliminating the presence of the eye-witnesses, what remains with the prosecution is the motive and' the abscondence. So far as the motive is concerned, it is stated by the complainant in the F.I.R. To be the previous blood feud between the parties. It is astonishing to note that when appearing in the witness-box, Mirsal Khan complainant completely forgot about the blood feud and categorically stated that prior to the present occurrence there was no enmity at all between the parties. Had there been no previous enmity between the parties, there must have been something having had developed at the spur of the moment and on the spot. Not a single word is uttered by the so-called eye-witnesses as to what went between the assailant and the deceased on the spot that resulted into the murder. I hold that the prosecution has utterly failed to prove the motive already alleged in the F.I.R. Rather, the controversial stance taken about motive, makes the story all the more doubtful as to how, why and where the occurrence took place.
19. The only thing that I am left with is the abscondence of the accused. When other material things are not proved by the prosecution, the abscondence alone, being the weakest kind of circumstantial evidence, cannot lead to the recording of conviction.
20: From what is observed by me, I hold that the instant one was an unseen occurrence and the deceased also was killed somewhere else. The eye-witnesses were procured subsequently. The prosecution has failed to prove its case up to the hilt. The appeal is accepted, the impugned conviction recorded and the sentence passed under section 302, P.P.C. By the learned Additional Sessions Judge, Kohat vide judgment, dated 31-7-1995 is set aside and the appellant Tameez Khan son of Fateh Khan is hereby acquitted of the charge under section 302, P.P.C. The connected Criminal Revision No,97 of 1995 for the enhancement of sentence as well as compensation is also dismissed. If not required to be detained in any other cause, Tameez Khan appellant is directed to be released forthwith.