EJAZ AFZAL KHAN, J.---The appellants herein were charged for the murder of Toor Muhammad, Noor Muhammad and Ashfaq Ahmad in a case registered against them and the absconding co- accused under sections 302/324/148/149, P.P.C. Vide F.I.R. No,56 dated 3-2-1992 in Police Station Mathra, Tehsil and District Peshawar.
2. The facts, stated in brief, are that on the day of occurrence, Fazal Mir P.W. And his brothers, namely, Noor Muhammad, Toor Muhammad and Gharibullah were going to their fields on a thoroughfare near the house of one Ashraf Khan. As soon as they reached the place of occurrence, Yasin, Wali Muhammad alias Chaman, Mukhtiar Khan, Roshan Khan, appellants herein, Faqir and Ayaz, absconding co-accused duly armed came from the opposite direction and started firing on them, in consequence whereof Noor Muhammad, Toor Muhammad and Ishfaq Ahmad a wayfarer were hit and died on the spot. The motive for the occurrence was that the appellant Roshan was fired at by someone a year before for which the deceased were suspected.
3. Bahadur Khan, A.S.-I. On getting an inkling about the occurrence proceeded to the spot where he after recording the Murasila, preparing the injury-sheets and the inquest reports of the deceased, dispatched them to the District Headquarter Hospital for post-mortem examination, prepared the site-plan, took into possession blood-stained earth, empties of '30 and '7.62 bore, spent bullets from the spot, packed them into separate sealed parcels, recorded the statements of the P.Ws. And handed over the case to the S.H.O. For further proceedings who on completion of the investigation forwarded the appellants for trial.
4. On being charged when the appellants pleaded not guilty, the prosecution examined as many as eleven witnesses to prove its case against them.
5. Dr. Javed Iqbal, Medical Officer, District Headquarter Nasir Bagh,Peshawar, performed the post- mortem examination on the dead body of Toor Muhammad and found the following:-- External Examination: No mark of ligature of dissection on the neck present. A young man of the age 33 years moderatel, built body lying dead. Bleeding from mouth and nose present. Post-mortem lucidity and rigor mortis fully developed. Belonging: One pair of sky color Qameez and Shalwar and one white Banyan blood-stained and wet fully bearing cuts and wounds, holes present on the clothes. Injuries:
(1) A fire-arm entry wound situated on back of neck on right side oval in shape 1/2 x 1/3 c.m. In size 8 c.m. From the mestoid process and 7 c.m. From the tip of 7th cervical vertebrae.
(2) F.A. Exit wound on the check stellite in shape 2-1/2 x 1-1/2 c.m. In size, 3 c.m. From the angle of mouth and 4 c.m. From the angle of left mandiable.
(3) F.A. Entry wound in the right flank 1-1/2 x 1/2 c.m. In size 7 c.m. Above the anterior superior iliac spine and 16 c.m. From umbilicus.
(4) Two fire-arm exit wounds on the left side front of abdomen with harniation of the loop of intestine 4 x 2 c.m. In size 4 c.m. From umbilicus and 7 c.m. From the left anterior superior iliac spine with minor wound 1 c.m. Apart. One metallic piece of the bullet.
(5) A fire-arm entry wound on the outer aspect of right thigh 2 x 1 c.m. In size 17 c.m. Below the lower border (fold) of right buttock and 5-1/2 c.m. Above the popleteal fossa.
(6) Fire-arm exit wound on the inner aspect of right thigh 2 x 1 c.m. In size 10 c.m. Above the knee and 30 c.m. Below the right anterior superior iliac spine.
(7) A fire-arm entry wound 1 x 1-1/2 c.m. In size situated on the left thigh 8 c.m. Above the popleteal fossa and 30 c.m. Below the lower fold of left buttock a bullet was recovered from the sub cutareous tissues near the entry wound.
(8) A fire-arm entry wound of 1 x 1 c.m. In size situated on outer aspect of left leg 14-1/2 c.m. Below the left knee-joint and 20 c.m. Above the left ankle-joint.
(9) A fire-arm exit wound situated on the outer aspect of left leg 1-1/2 x 1 c.m. In size 10 c.m. Above the ankel-joint and 13 c.m. Below popeteal fossa.
(10) A fire-arm entry wound on the dorsal surface of left hand with metalic forigen body 2 x 3 c.m. In size 6 c.m. Above the wrist-joint and 2 c.m. Below the base of middle finger.
(11) Fire-arm exit wound on the palm of left hand 2 x 1 c.m. In size 3 c.m. Above the middle finger and 6 c.m. From the root of the thumb.
Internal Examination: Major blood vessel of the neck, abdomen, left leg right leg under corresponding wounds injured.
Walls peritoneum were injured. Stomach healthy and containing 300 cc of digested food. Small and large intestines were injured. Bladder also injured. Opinion: In his opinion the cause of death is injuries to the neck, structures, intestines and bladder due to fire-arm. Probable time between injury and death 10-40 minutes and time between death and post- mortem 12 to 15 hours.
6. On the same day he performed the post-mortem examination on the dead body of Ishfaq Ahmad and found the following:-- External Examination:
(1) A fire-arm entry wound on 1/2 c.m. In diameter situated on the left side front of chest 2 c.m.
Below the clavicle and 9 c.m. From the top of shoulder.
(2) Fire-arm exit wound of 3 x 1 c.m. In size on left side back of chest 9 c.m. From middle and 10 c.m.
Below the inferior angle of left scapula.
(3) Fire-arm entry wound of 1/2 c.m. In diameter situated on left side back of chest 7 c.m. From the left axilla and 11 c.m. From midline.
(4) Fire-arm exit wound of 5 x 2 c.m. In size situated on left side front of chest 2 c.m. Above left nipple and 8 c.m. From midline.
(5) Fire-arm exit wound of 1 x 1/2 c.m. In size situated on buttock 10 c.m. From midline and 6 c.m.
Below the anterior superior iliac spina.
(6) Fire-arm entry wound of 2-1/2 x 1-1/2 c.m. In size situated on left buttock 7 c.m. Lateral to wound No,5.
(7) Fire-arm entry wound of 1/2 c.m. In diameter situated on right buttock 10 c.m. From midline and 11 c.m. Below the anterior superior iliac spine.
(8) Fire-arm exit wound of 4 x 2 c.m. In size situated on left groin (pubic region) 4 c.m. From midline and 1 c.m. Below the ingiunal ligament.
(9) A fire-arm grazing wound of 7 x 1 c.m. In size situated on left dorsum of forehand 18 c.m. Below- the elbow-joint and just on wrist-joint.
(10) A fire-arm entry wound of 1 x 1/2 c.m. In size situated on right front of upper arm 13 c.m. Below the top of shoulder and 13 c.m. From elbow-joint.
(11) Fire-arm exit wound of 6 x 3 c.m. In size situated on outer aspect of right upper arm 4 c.m.
Above elbow-joint and 12 c.m. Form axillary fossa.
(12) A fire-arm gutter wound of 9 x 2 c.m. In size situated on outer aspect of right upper arm 16 c.m.
Below the shoulder top and 10 c.m. Above the elbow-joint.
Internal Examination: Left side chest wall, left pleurae, left lung, pericardium and heart and blood vessel in the chest right upper arm and left buttock under corresponding, wound were found injured. Peritoneum, diaphragm were injured and stomach was healthy and containing 300 cc of digested food. Spleen was also injured. Opinion: In his opinion the cause of death is injuries to the vital organs i,e,heart, left lung, spleen and right upper arm due to fire-arm. Probable time between injury and death 0-1/2 hours and time between death and post-mortem 12-15 hours.
7. Similarly on the same date at 10-15 hours he performed the postmortem examination on the dead body of deceased Noor Muhammad and found the following: External Examination: No mark of ligature on dissection on neck present. A moderately built body beard shaved lying dead. P.M. Lividity and R.M. Fully developed. Injuries:
(1) Fire-arm entry wound of 1 x 1/2 c.m. In size situated on left front of chest 6 c.m. From left nipple and 6 c.m. Xiphoid process.
(2) Fire-arm entry wound of 1/2 c.m. In diameter situated on left front of chest 6-1/2 c.m. From left nipple and 3 c.m. From xiphoid process.
(3) Fire-arm entry wound of 1/2 c.m. In diameter situated on right front of chest 10-1/2 c.m. From right nipple and 17-1/2 c.m. Above umbilicus.
(4) Fire-arm entry wound of 1/2 c.m. In diameter situated on epigastrum 10-1/2 c.m. From umbilicus and 5-1/2 c.m. Below the sternum.
(5) Fire-arm entry wound of 1 x 1/2 c.m. In size situated on right hand on the base of the thumb 7 c.m. From the wrist joint and 6-1/2 c.m. From the tip of the thumb.
(6) Fire-arm exit wound of 2 x 1/2 c.m. In size situated on left dorsum side of thumb 6 c.m. Above wrist-joint and 5 c.m. Below the tip of the thumb.
(7) Fire-arm exit wound of 1/2 c.m. In diameter situated on right hand 6-1/2 c.m. From wrist joint and 5 c.m. From the tip of thumb.
(8) Fire-arm exit wound of 2-1/2 x 1-1/2 c.m. In size situated on the left side front of chest 12-1/2 c.m.
From the clavicle and 5-1/2 c.m. From left axilla.
(9) Fire-arm exit wound of 2-1/2 c.m. x 1-1/2 c.m. In size situated on left side front of chest 20-1/2 c.m. Below the clavicle and 25-1/2 c.m. Above posterior superior iliac spine.
(10)Fire-arm exit wound of 1-1/2 x 1 c.m. In size situated on the back of abdomen 1-1/2 c.m. Above posterior superior iliac spine and 5 c.m. Above lumber region.
(11)Fire-arm exit wound of 2-1/2 x 1/2 c.m. In size situated on back of the abdomen 1 c.m. Below injury No,10.
Internal Examination: Walls both sides, pleura both sides, right lung, left lung, pericardium and heart and blood vessels in the chest abdomen left and right head under corresponding wounds were injured. Walls, peritoneum, diaphragm were injured and stomach was healthy and containing 300 cc of semi- digested food. Small intestine and large intestines, lever were injured. In his opinion the immediate cause of death is injuries to the vitalorgans i,e, heart, lungs, liver and intestines due to fire-arm. Probable time 'between injury and death immediate and time between death and post-mortem 15 to 18 hours.
8. The ocular account, as detailed above, was furnished by Fazal Mir and Gharibullah.
9. On the close of the prosecution evidence the appellants professed innocence and denied their involvement in the commission of the crime.
10. The learned trial Judge on the conclusion of the trial sentenced each of them to undergo imprisonment for life and to pay an amount of Rs,10,000 to the legal heirs of the deceased Noor Muhamamd and Toor Muhammad as compensation or in default to suffer further S.I. For six months. Hence this appeal.
11. It was mainly contended by the learned counsel for the appellants that the occurrence is blind and unwitnessed; that the medical evidence is in conflict with the ocular testimony; that the number and seats of injuries on the persons of the deceased show that the occurrence has not taken place in the manner described by the prosecution; and that even the motive for the occurrence is not strong enough to justify such a brutal act, on the part of the appellants, which has taken away three human lives.
12. The prosecution on the other hand, defended the judgment of the learned trial Court by advancing the oft-repeated arguments that the evidence on the record connects the appellants with the crime beyond any shadow of reasonable doubt; that there is no motive whatever to falsely implicate them and that their prolonged noticeable abscondence would lend added vigour to the truth of the charge against them.
13. An examination of the evidence on the record would reveal that the occurrence has not taken place in the manner described by the prosecution. The narration given by the eye-witnesses that the deceased were proceeding towards their fields namely, 'Khura' when the appellants alongwith their absconding co-accused popped up from the opposite side and started firing on them is not consistent with the medical evidence as the fire-arm entry wounds are found on the front as well as back of two of the deceased, more so when none of the deceased according to the P. Ws. Was fired at from behind.
14. 13-A. How the deceased Ashfaq Ahmad happened to be present on the scene of occurrence and how did he sustain fire-arm injuries on his person has not been explained at all by the prosecution. Had he been hit by a stray bullet, it could well have been said that his death was accidental. But where the wounds of entry on the back and front of the deceased Ashfaq Ahmad are as many as six and he has been shown to have fallen dead at a point which is outside the line, range and direction of the fire shown to have been made by the appellants and the absconding co-accused, then the only tenable deduction we could be led to is that the P.Ws. Who posed and pretended to have seen the occurrence were not present there at the relevant time.
14. The number of injuries on the person of each of the deceased shows that it was a crime of extreme vengeance and vendetta. How Ashfaq Ahmad deceased happened to be a companion and cohort of the other two deceased is a fact which remained lost in the unfathomable waters of mystery.
15. The statement of the P.Ws., that they were well within the firing range of the assailants and could have been hit if they had not sought refuge behind the embankment wall of the nearby fields, which stands contradicted by the Investigating Officer who denied the existence of any such embankment wall near and around the place of occurrence, further butresses the conclusion that they were not present at the scene of occurrence at the relevant time.
16. The presence of empties near the dead bodies of the deceased is another circumstance tending to change the whole complexion of the occurrence which has also been alluded to by the learned trial Judge in his judgment though from a different angle of vision, further deepens the doubt and confusion about the actual events culminating in the present incident.
17. The story projected by the defence during the course of cross-examination about the abduction of the one Mst. Nasreen by the deceased Toor Muhammad has given yet another turn to the prosecution case. In view of the admission of the P.Ws., that Mst. Nasreen after having been abducted by the deceased Toor Muhammad bore him a child; that the said Mst.Nasreen was engaged with one Sher Akbar and that after seeing the dead bodies of the deceased Toor Muhammad and Noor Muhammad, one Lal Muhammad commended the mother of Mst. Nasreen for having masterminded these murders, the occurrence appears to have been an authorship of the brothers of Mst. Nasreen or her fiancee.
18. All these circumstances discussed above make this incident highly mysterious and extremely doubtful, therefore, holding the appellants guiltyfor the murders of the deceased on the basis of this evidence, to our mind, would not be in accordance with the safe administration of justice.
19. As far as the abscondence of the appellants is concerned, it is by r. Now more than settled that where otherwise the evidence on the record isdeficient to connect the appellants with the crime, the abscondence cannot be taken to remedy the defects of the prosecution case.
20. These are the reasons for our short order dated 17-4-2001 whereby the appeal is accepted, the impugned conviction recorded and the sentences imposed by the learned Additional Sessions Judge, Peshawar dated 8-12-1997 are set aside and the appellants are acquitted of the charges under sections 302/324/148/149, P.P.C. If not required to be detained in any other cause, they be released forthwith.