' SHAH JEHAN KHAN, J.--- Wisal Qamar, appellant herein, charged under section 302, P.P.C. Vide F.I.R.
No,201, dated 8-6-1990 Police Station Akora Khattak for the murder of Imdad Gul son of Ihsanullah resident of Misri Banda, was tried by the learned Sessions Judge, Nowshera who vide his judgment and order, dated 19-5-1996 found him guilty, convicted and sentenced him to imprisonment for life and a fine of Rs,20,000 or in default to undergo one year's R.I. The fine on realisation was ordered to be paid as compensation to the legal heirs of the deceased. Benefit of section 382-B, Cr.P.C. Was also extended to the appellant. Feeling aggrieved of his conviction and sentence the appellant has approached this Court with the appeal in hand.
2. In this case the appellant was once convicted and sentenced under section 302, P.P.C. To life imprisonment and a fine of Rs,10,000 or in default to undergo one year's R.I. Vide order, dated 16-4- 1994 of the learned Sessions Judge, Nowshera but in Criminal Appeal No,102 of 1994 by the appellant vide this Court's order dated 17-1-1996 his conviction and sentence was set aside and the case was remanded back to the trial Court with the direction either to record the statement of the appellant on oath or record his statement to the effect that he does not want to be examined on oath. After remand on 13-3-1996, the statement of Wisal Qamar was recorded to the effect that he did not want to be examined on oath and thereafter the impugned judgment and order, dated 19- 5-1996 was recorded as mentioned above.
3. The brief facts are that the complainant alongwith his brother Imdad Gul were going to mosque situated in Yaro Khel, Misri Banda, for preparation of Juma Prayer. The complainant stayed outside the mosque for urinating himself while his brother went inside the mosque. According to the complainant after urinating himself, the complainant was entering into the mosque while his brother Imdad Gul was brushing his teeth. Wisal Qamar appellant duly armed with pistol was standing nearby and all of a sudden fired two shots, which hit the brother of the complainant, who fell on the ground and died. The appellant went out of the mosque while the complainant ran away due to fear. According to the report Musafar Shah and Fateh Khan were present on the spot, who witnessed the occurrence. The report was made by the complainant in the police station which was recorded in F.I.R. Exh.P.A. After investigation of the case complete challan was put in Court. On 16-5-1993 charge was framed against the accused to which he pleaded not guilty and claimed trial.
4. The prosecution examined eleven witnesses in all in support of its case. The appellant was examined under section 342, Cr.P.C. Wherein he stated that he was innocent and falsely charged.
The appellant produced one Niaz Muhammad as defence witness. After remand the statement of accused was recorded as per direction of this Court in which he opted not to be examined on oath.
5. Dr. Shafiqur Rehman was examined as P.W.9 who conducted the post-mortem examination on the dead body of Imdad Gul deceased on 8-6-1990 at 1-50 p.m. And found the following:- External examination:
(1) Fire-arm entry wound on the left side of chest just below the neck about 1/4" x 1/4".
(2) Fire-arm entry wound on the right side near the sternum about 1/4" x 1/4".
(3) Fire-arm exit wound on the right thigh of scapula on the posterior aspect of chest about 1/2" x 1/2".
(4) Fire-arm exit wound on the posterior aspect 1/2" x 1/2". Internal examination: ' Plurae, right and left lungs, pericardium and heart, blood vessels found injured. Scapula on both sides fractured.
Remarks: ' The person died due to injuries to heart, both lungs and blood vessels, resulting into haemorrhage.
' Time between injuries and death instantaneous. Time between death and post-mortem about 2 hours 50 minutes.
' The post-mortem report with pictorial is Exh.P.F./1 and bears his signature. The clothes of the deceased were handed over to the police.
6. We have heard learned counsel for the parties and have also perused record of the case.
7. Noor Dad Khan (P.W.6) is the real brother of Imdad Gul deceased while Musafir Shah (P.W.7) is the maternal-uncle of deceased. P.W.6 in his statement before the Court has deposed that on the day of occurrence he had gone to the mosque for taking bath to prepare himself for Juma Prayer.
Before his reaching the mosque his brother Imdad Gul had already reached there and was busy in cleaning his teeth in the place of ablution. He noticed that Wisal Qamar appellant was standing behind his brother duly armed with Tamacha. He took out his pistol from the trouser fold and fired two consecutive shots at the deceased with which he was hit and after going for 8/10 paces towards the west fell on the ground and the accused-appellant decamped from the spot. At the time of occurrence Musafir Shah (P.W.7) and Fatehullah, the uncle of deceased an abandoned P.W.
Were present there, witnessed the occurrence and they jointly put the deceased on a cot and took to police station for lodging the report (Exh.P.A.). Musafir Shah (P.W.7) has stated in his statement that he had gone to the mosque where the occurrence took place at about 11-00 a.m. To prepare himself for Juma Prayer and for recitation of Holy Qur'an. He found Imdad Gul busy in teeth brushing. In the meanwhile Wisal Qamar appellant entered the mosque, proceeded towards the deceased where he took out his pistol from his trouser fold and fired two shots at the deceased effectively. The deceased after receiving the fire shots went up to 20 feet, fell on the ground and died there. The convict-appellant left the spot through main gate of the mosque after commission of the offence. He affirmed the presence of Noor Dad Khan (P.W.6), Fatehullah abandoned P.W. And Imam Masjid at the relevant time and nobody else was present in the mosque. Both the eye- witnesses have stated that the accused was annoyed on the help of Imdad Gul deceased extended by him to the police in lifting the belongings of the proclaimed offender, namely Ambaras who happened to be the relative of the appellant. This motive was introduced for the first time in their Court statement. No such motive was either disclosed in the F.I.R. (Exh.P.A.) nor in the statements recorded under section 161, Cr.P.C. Both the P.Ws. Contradicted each other in respect of arrival of the appellant, P.Ws. And deceased to the mosque. Noor Dad Khan (P.W.6) has stated that deceased had reached the mosque before his arrival while Musafir Shah (P.W.7) has stated that it was Noor Dad (P.W.6) who arrived there in the mosque before the arrival of Wisal Qamar and deceased. The version of P.W.6 regarding his arrival in the mosque for preparation for Juma prayer at 11-00 hours is not convincing and it is very strange to note that from the entire village community only the deceased, his real brother P.W.6, maternal-uncle P.W.7 and uncle Fatehullah abandoned P.W. Had come to the mosque for preparation for Juma prayer and none else had come to the said mosque for such preparation. The site plan (Exh.P.B.) prepared at the instance of eye-witnesses also creates serious doubt regarding the presence of P.W.6 at point No,3 and Fatehullah abandoned P.W. At point No,5. Both points are located in the two entrance gates of the mosque.
The accused if fired at the deceased from point No,6 and decamped through the main gate of the mosque from either of the two gates he has to pass through either P.W.6 or P.W.7. P.W.7 has been allocated point No,4 in the site plan falling in-between points Nos.5 and 6. The culprit could easily be overpowered by the witnesses if he had passed through them in the main entrance gate of the mosque but none of the P.Ws. Have deposed that either they tried to catch hold of the appellant or made hue and cry to the inhabitants of the village for catching hold of the accused. The presence of P.W.6 at point No,3 and P.W.7 at point No,4 is highly doubtful and not believable. Their deposition is also not worth reliance as they have made material improvement n their statement before the Court so that the case of the prosecution must be further petitioned.
8. The presence of Imam Masjid at the relevant time is natural in the sense that Imam Masjid is supposed to be present at the mosque and none of the prosecution witnesses have denied the presence of Imam Masjid. Niaz Muhammad, Imam Masjid was produced as defence witness (D.W.1) who deposed that on the day of occurrence he was present in the mosque busy in reading a book and heard the report of fire shots which attracted him outside the room and saw deceased then injured but not capable of talking lying on the ground and nobody was present when he reached near the deceased. Subsequently, people attracted there but he did not notice Noor Dad (P.W.6) and Musafir Shah (P.W.7). The defence witness is a disinterested person as he is neither partisan or relative of either of the parties nor had any enmity with either of the parties. His presence in the mosque at the relevant time is not only natural but also affirmed by P.W.7. In these circumstances the prosecution has not successfully established the presence of P.Ws.6 and 7 at the scene of occurrence at the relevant time.
9. The medico-legal report is also contradictory to the statement of P.W.6 inasmuch as the witness has deposed that Wisal Qamar who war standing behind Imdad Gul deceased and fired at him from his back but the medico-legal report reveals that there was found fire-arm entry wound on the left side of chest below the neck and another entry wound on the right side near the sternum.
Both the entrance wounds could not be caused from the back side. This glaring contradiction between the ocular version and the medico-legal report speaks of the non-presence of the alleged eye-witnesses at the time of firing at the deceased.
10. The prosecution has also alleged abscondence of the appellant from 8-6-1990 to 11-11-1992 which was explained by the appellant in his statement under section 342, Cr.P.C. Who stated that he did not abscond but as the complainant party was influential enough, therefore, due to the fear of complainant party and the local police he did not dare to surrender. The abscondence by itself does not establish the guilt of the accused unless it is corroborated by other cogent evidence.
11. Since the prosecution has miserably failed to establish the guilt of appellant by means of ocular evidence the recovery of empties from the spot and the spent bullets will not serve as sufficient corroboration of the ocular version. The alleged abscondence is also of no use as the prosecution has miserably failed to bring home guilt to the accused through ocular evidence.
12. From the discussion made above, we are of the view that the prosecution has not proved its case against the appellant beyond reasonable doubt. Therefore, this criminal appeal is accepted, the conviction and sentence of the appellant recorded through the impugned judgment and order, dated 19-5-1996 is set aside and the appellant is acquitted of the charge levelled against him. The appellant Wisal Qamar be set at liberty forthwith if not required in any other case.