' SHAHZAD AKBAR KHAN, J.--- Through the instant appeal, the convict/appellant, Nazar Khan, has called in question the judgment and order, dated 3-6-1996 of the Additional Sessions Judge, Lakki, vide which he was convicted under section 302/34, P.P.C. And was sentenced to imprisonment for life and fine of Rs,30,000, or in default of payment thereof to further undergo simple imprisonment for two years. In case of realization of the fine, 2/3rd of it was to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Benefit of section 382-B, Cr.P.C. Was also extended to him. The complainant is also aggrieved of the said order of the learned trial Judge and by assailing the same through Criminal Revision No,10 of 1996 has prayed for enhancement of the convictions and sentence of the appellant to that of the normal penalty of death and adequate compensation. Since both the matters are the outcome of one and the same order of the learned trial Judge, we, therefore, propose to dispose it of by this single judgment.
2. Briefly, the prosecution story narrated in the F.I.R. By complainant Miram Shah (P.W.11) is that on 20-1-1992 at Peshin Vela deceased Hassan Shah had gone to Mandi of Ali Muhammad where he (complainant) his nephew Dom. Muhammad (P.W.12) and few other persons were sitting in the grain Mandi. After some time, the complainant alongwith Hassan Shah and Dost Muhammad and his nephew started to the house of Sher Bahadur, brother-in-law of the deceased Hassan Shah, to inquire about the ailing health of sister of the deceased. On their reaching to the Mandi of Karim Shah, suddenly absconding accused Bahadur Khan and the appellant, sons of Gul Akbar, equipped with Topaks emerged from the shrubs and started firing on them with which Hassan Shah was hit and fell on the ground. The complainant alongwith P.W. Dost Muhammad ran towards the Mandi of Ali Muhammad to rescue themselves as they were empty-handed. The accused after commission of the crime decamped towards the hill. The motive for the occurrence disclosed by the complainant is the previous blood feud. The matter was reported by him on the same day at 4-30 a.m. In the police station and resultantly the case vide F.I.R. No,8 was registered against the appellant and the absconding accused Batar Khan.
3. After completion of the investigation, complete challan under section 512, Cr.P.C. Against both the accused was submitted by the Investigating Officer. However, subsequently, on the arrest of the appellant on 29-12-1993, supplementary challan was put in Court against him on 3-1-1994.
4. During the trial of the case, the prosecution examined as many as 12 witnesses, of whom P.W.1 Muhammad Aslam Khan executed warrants under section 204, Cr.P.C. Against the appellant and proclamation notice under section 87, Cr.P.C. P.W.2 is the identifier of the dead body at the time of post-mortem examination. P.W.3 Saifullah Khan, Medical Officer, Civil Hospital, Lakki who had conducted post-mortem examination on the dead body of the deceased Hassan Shah and found the following injuries:- External:
(1) One entrance wound of fire-arm at posterior surface and in middle part of left forearm size 1/4" x 1/4" skin and muscle deep.
(2) One exit wound of fire-arm at anterior surface and in middle part of left forearm size 4" x 2".
(3) One entrance wound of fire-arm at left lateral side of chest 5" below the arm-pit sizes 1/4" x 1/4" x skin muscle and cavity deep.
(4) One exit wound of fire-arm at right lateral side of chest below 2" the arm-pit sizes 1/2" x 1/2".
(5) One re-entrance wound of fire-arm at medial surface of right arm 2" below the arm-pit sizes 1/2" x 1/2" x skin and muscle deep.
(6) One exit wound of fire-arm at lateral surface of right arm 6" below the shoulder joint size 1" x 162".
(7) One entrance wound of fire-arm at back of chest on right side at the level of lower angle of right scapula size 1/4" x 1/4" x skin muscles and cavity deep.
(8) One exit wound of fire-arm at front of chest on right thigh just below the medial end of clavicle bone size 1" x 1".
(9) One entrance wound of fire-arm at posterior surface of right forearm 3" above the wrist joint size 1" x 1/2" x skin and muscle deep.
(10) Fracture bone can be seen through the wounds.
(10-A) One exit wound of fire-arm at anterior surface of right forearm 3"' above the wrist-joint size 1" x 1/2".
Internal: ' Thorasic walls, ribs and cartilages injured. Right and left lungs pericordium blood vessels and heart injured.
Stomach and its contents: ' Healthy. Digested food in small quantity present.
' Right ulna and redious bone ... Fractured. Left ulna and redious bone ... Fractured.
' In opinion of the doctor, the death was caused as a result of injury to the vital organs, both lungs and heart causing asphyxia and severe haemorrhage shock and death. Probable time between injury and death was opined as about five minutes while between death and post-mortem examination two to three hours. Six metallic pieces were recovered from wounds Nos.6 and 10.
5. P.W.4 is Asmatullah Khan, S.H.O. Of Police Station Ghazni Khel who arrested the appellant on the date mentioned above as he surrendered before the S.H.O. Voluntarily and, as such, complete challan was put against him on 3-1-1994. P.W.5 is the marginal witness to the recovery memo.
Exh.P.W.5/1 vide which the phial containing metallic pieces were taken into possession by the Investigating Officer sent by the doctor. P.W.6 is Patwari Halqa who on the direction of the Investigating Officer prepared the extract from the record of rights as Exh.P.W.6/1 and Aks Kishtwar as Exh.P.W.6/2 from the Revenue Record. P.W.7 is Shahabuddin Khan, S.-I. (retired) who being posted as S.H.O., Police Station Pezu had submitted the complete challan against the accused under section 512, Cr.P.C. P.W.8 is Sadullah Khan, A.S.-I. Who was posted as I.H.C. In Police Station Pezu during the relevant days and is a marginal witness to the recovery memo. Exh.P.W.8/1 which is related to the blood-stained sand of the 'venue of occurrence. He is also a marginal witness to Exh.P.W.8/2 vide which the Investigating Officer took into possession three empties of .7 m.m. Exh.P.1, and two live cartridges of the same bore Exh.P.2. Vide Exh.P.W.8/3 the Investigating Officer took into possession a blood-stained shirt (P.3), Banyan (P.4) and Chhuri (P.5) belonging to the deceased, to the memo. Whereof this P.W. Is the marginal witness. A sealed phial containing metallic pieces Exh.P.6 sent by the doctor and the clothes were sealed into parcel in his presence. He admitted his signatures on all the recovery memos. P.W.9 is Rastan Ali Shah, F.C. No,394. He escorted the dead body of the deceased from police station to the hospital. P.W.10 is Gul Sher Khan, A.S.-I. Who registered the case on the report of Miram Shah complainant. This witness prepared the injury sheet and inquest report of the deceased as Exh.P.M./2 and Exh.P.M./3 respectively. He drew the site plan (Exh.P.B.). He had also taken into possession the blood-stained earth, three empties of .7 m.m.
And two live cartridges through the recovery memo. Mentioned above. He also took into possession the abovementioned attire of the deceased. P.W.11 is Miram Shah who is the eye-witness of the occurrence. In the Court statement he deposed more or less in terms of the F.I.R. According to this witness, both the accused were armed with Topaks. The appellant was attributed the first fire shot which hit the deceased and the second shot was fired by the absconding accused Batar Khan which also hit the deceased. The deceased had statedly run ahead towards the grain market of Karim Khan and, thereafter, both the accused had again fired at the deceased and this time, the deceased was hit by the fire shot of absconding accused, but the witness was not sure whether the second fire shot of the appellant could hit him or not. In the Court statement, the motive was detailed that one Qasim Khan who was the Tarboor of the father of the accused was murdered and the brother of the accused, namely, Ali Akbar, was charged for the murder. The other eyewitness is P.W.12 Dost Muhammad who also supported the complainant in the trial Court. This witness stated that when they reached the spot, the appellant Nazar Khan, and the absconding accused Batar Khan appeared from the bushes and they were armed with rifles. However, in the same breath he stated that Nazar Khan accused fired at them with his .12 bore shotgun with which Hassan Shah deceased was hit and thereafter Batar Khan also fired at Hassan Shah effectively and he alongwith the complainant ran back towards the grain market of Ali Muhammad, while Hassan Shah after receiving injuries ran towards the grain market of Karim Khan. He further stated that again both the accused fired at the deceased out of which the deceased received injuries from the fire shots of accused Batar Khan and the deceased fell down on the ground and the accused decamped towards the hill side. On the close of the prosecution evidence, the accused/appellant was examined under section 342, Cr.P.C. In which he denied the commission of the offence and also denied the relations with Qasim Khan who is related with the motive for the occurrence. About the abscondence, he stated that he had gone to Karachi for labour and on his return he himself submitted for the arrest.
6. The learned counsel appearing on behalf of the appellant has assailed the impugned conviction and sentence of the appellant and submitted that the prosecution has not been able to prove its case against the appellant and for that matter the impugned judgment of the learned trial Court is erroneous and is the outcome of misreading and misappreciation of the evidence. He argued that the tale advanced by the eye-witnesses is totally unnatural and is destitute of the quantity of attracting confidence. He critically referred to the site plan in which the grain Mandi Karim Khan is shown on the eastern side of points 1, 2, 3, 5 and 6. Point 2 is the place where the complainant claims his presence and point No,3 is the place given to P.W. Dost Muhammad whereas on point No,1 the deceased was shown at the first instance. On this point, he was shown fired at by the appellant from point No,5 and by the absconding accused from point No,4 and significantly a .7 m.m. Rifle was attributed to the absconding accused, whereas the appellant was shown on point No,5 armed with a .12 bore shotgun. The learned counsel stated that after receiving the injuries at the first instance, the deceased was shown running to the Mandi of Karim Khan but on point No,6 he fell and died there. The distance between point No,1 and point No,6 is 37 paces, which means that after receiving the first injury he walked for 37 paces but no trail of blood was found in- between the two points. He further submitted that three empties of .7 m.m. Attributed to the absconding accused were found on point "A", close to point No,4 where the absconding accused was shown firing at the deceased. He argued with vehemence that no empty of .12 bore was recovered from the place of the appellant notwithstanding the fact that two fire shots have been attributed to the appellant. He further, argued that on the wall of grain Mandi of Karim Khan, the Investigating Officer had shown marks of bullets and pellets but astonishingly no pellet or bullet was recovered therefrom. The learned counsel further attacked the testimony of the eye-witnesses on the ground that their conduct of running back to the Mandi of Ali Muhammad was also unnatural, as both the P.Ws. Had crossed the appellant and to them the proper assylum was the Mandi of Karim Khan, because running back to the Mandi of Ali Muhammad was attended with manifest danger of being fired by the appellant. On this point, the learned counsel has stated that both the witnesses were not present. He also made reference to the metallic piece recovered from the body of the deceased by the doctor which were found pieces of bullet as per report of the Forensic Science Laboratory, Peshawar. Thus, the non-recovery of any empty of .12 bore, non- recovery of the pellet from the wall of grain Mandi of Karim Khan and non-recovery of any pellet from the body of the deceased speak volume about the fact that the charge against the appellant was false. The learned counsel also referred to the post-mortem report which shows that there are four entrance wounds and one wound of re-entrance which is wound No,5 and argued that the size of the enterance wound is 1/4" x 1/4" and .Above, which shows that these enterance wounds are caused by bullets and not by pellets. In support of his such argument he has referred to the cross- examination of the doctor, wherein he stated that in his opinion, enterance wounds on the person of the deceased are possible from the similar size of projectile and by putting this evidence in line with the pieces of bullets recovered from the body leaves no other possibility but the irresistible conclusion that the death was caused by bullet injuries. He still further argued with reference to the statement of P.W.12 in his own words as follows:-- "Accused Nazar and absconding accused Batar appeared from the bushes. They were armed with rifles. 1st Nazar accused fired at us with his .12 bore shotgun with which Hassan Shah was hit."
On this point, the testimony of this witness is irreconcilable, as on the one hand he says that they were armed with rifles, which means that both the accused were armed with rifles but simultaneously he changed version from rifle to .12 bore shotguns. This diversity reflects upon the truthfulness of the eye-witnesses, said the learned counsel.
7. On the other hand, the learned counsel for the State, however, admitted that in the instant case, no shotgun has been used but still he argued that in view of the statements of the eye-witnesses, the presence of the appellant was established and, as such, according to him, section 34, P.P.C.
Was attracted to the present case.
8. Learned counsel for the complainant, however, defended the impugned judgment of the Court below and submitted that the occurrence had taken place in the broad daylight and the appellant alongwith the absconding co-accused are directly nominated in the F.I.R. According to him, the medical evidence supports the prosecution version and the mere non-recovery of the empties or pellets from the venue of occurrence are not sufficient to set aside the conviction and sentence of the appellant. He also argued that there is a motive for the occurrence and the accused remained absconder for a sufficient long time. According to the learned counsel, the punishment awarded to the appellant is not appropriate and prayed for enhancement of the sentence to the normal penalty of death, because according to the learned counsel, there are no mitigating circumstances available to the appellant:
9. We have heard the rival arguments of both the learned counsel for the parties and also for the State. We may observe that in the F.I.R. As well as in the statement before the trial Court, the complainant has not specifically mentioned the kind of arms possessed by the appellant and the absconding accused. He has used the generic words of Topaks purposely so as to fit in any kind of injury found on the person of the deceased, but a look at the site plan which was prepared on the very day of occurrence shows that on point No,5, the appellant was shown equipped with .12 bore shotgun and subsequently, P.W.12, i.e. Dost Muhammad, also stated in his examination-chief that accused Nazar fired at them with his .12 bore shotgun. These facts clearly established the point that the appellant was attributed a .12 bore shotgun. It is also a matter of evidence that the appellant had fired two shots but neither any empty of .12 bore was not recovered from the scene of occurrence, nor any pellet could be recovered from the wall which bore the marks of projectiles.
The non-recovery of any pellet or bullet from the said wall is a bagging question from the prosecution, because there was no through and through hole in the wall wherefrom the projectile could go across. Since the particular kind of weapon has been attributed to the appellant, therefore, the evidence is to be searched so as to explore anything having a nexus with the use of the .12 bore shotgun. We have searched the entire evidence and have also put question to the learned counsel for the complainant, but neither could he point out any such evidence, nor we could explore from the record any evidence having a tendency to show that the .12 bore shotgun was used. Only .7 m.m. Empties were recovered from the spot and that spot has been attributed to the absconding co-accused and this is an eloquent indicator pointing towards the fact that the occurrence had not taken place in the manner as has been alleged by the P.Ws. And, as such, the presence and witnessing of the occurrence by the eye-witnesses is highly doubtful. It is also a salient feature of the case that the metallic pieces recovered from the body of the deceased were found pieces of bullet. Thus, an irresistible conclusion can be drawn that the crime was committed by a man who was armed with a rifle and no shotgun has been used, as fairly admitted by the learned counsel for the State. We further observe that according to the eye-witnesses, both the accused had fired one fire shot each at two times, which means in other words that two fire shots were fired by each accused, but according to P.W.12, on the second time of firing, only the fire shot of Batar had hit the deceased which means that in all three shots had hit the deceased. If this version of the eye-witnesses is accepted, then the deceased should have received three enterance wounds or at the most four if one re-entrance wound is taken into consideration, but in the instant case, there are five entrance wounds, out of which wound No,5 is re-entrance, which goes materially counter to the ocular version and this incongruity would again lead to believe that the occurrence has not taken place in the manner and style as stated by the eye-witnesses. Thus, the aggregate result of the above discussion on the medical and the ocular evidence would be that either the witnesses were not present, or the involvement of the appellant was exaggerated and false. This could possibly be the act of one man.
10. Another material discrepancy in the statements of the two eyewitnesses is that P.W.12 Dost Muhammad stated that his statement was recorded in the police station there and then, whereas P.W.11 i.e. The complainant stated that Dost Muhammad did not narrate the occurrence in the police station but he had accompanied the dead body of the deceased to the police station and later on he was examined on the spot. Thus, on the very examination of P.W.12, there is a contradiction between the two eyewitnesses.
11. In the instant case, the complainant party has shown previous enmity between them and the accused party and, in such circumstances, the eye-witnesses who are closely related to the deceased fall within the domain of "interested witnesses" and for the purposes of recording conviction for the offence involving capital punishment, rule of prudence and caution demands that there should be independent corroboration to the prosecution case. But, we have thoroughly scanned the entire record and have analytically observed all the attending circumstances and it is obvious that no independent corroboration in the form of circumstantial evidence is forthcoming in support of the ocular testimony of the interested witnesses. Rather, it is a case where the circumstantial evidence in the form of site plan and recoveries are manifestly speaking against the prosecution version.
12. Thus, in the wake of the above discussion and in view of the submissions made by the learned counsel for the appellant, we are obliged to hold that the conviction of the appellant is not warranted by law and is the result of erroneous interpretation of the facts and circumstances of the case.
13. Consequently, we accept this appeal, set aside the conviction and sentence of the appellant and he shall be set free forthwith if not wanted in any other case. Resultantly, the criminal revision filed by the complainant for enhancement of the conviction and sentence of the appellant is dismissed.