' EJAZ AFZAL KHAN, J.--- The appellant 'herein assailed the judgment and order, dated 8-6-1998 of the learned Additional Sessions Judge, Swabi whereby he sentenced the appellant to imprisonment for life as Tazir with a fine of Rs,30,000 or in default to undergo 2 years' R.I. In a case registered against him under section 302, P.P.C. Vide F.I.R. No,740, dated 13-9-1995 in the Police Station Kalu Khan.
2. The facts, stated in brief, are that on the day of occurrence the deceased Muhammad Naeem in the company of Muhammad Hayat and Aman Ali P.Ws. Was proceeding to village Mada khel. As soon as he alongwith the aforesaid P.Ws. Reached the fields of Ali Bahadur situated in Karkano Wand, he was fired at by Khan Akber, appellant and was thus, done to death. The motive for the occurrence was strained relations between the sister of the deceased and her husband Jehan Akber an elder brother of the appellant, resulting in her ouster from his house about 8/9 months before the occurrence. On having been apprised about the incident by the eye-witnesses mentioned above, the father of the deceased Mohib Gul, reported the incident and pursuant thereto the case mentioned above was registered against the appellant. During the course of investigation guilt was fastened on the appellant who somehow or the other became fugitive from law. Subsequently on having been arrested he was forwarded to the Court of learned Additional Sessions Judge for trial.
3. On being charged when he pleaded not guilty, the prosecution examined as many as 13 witnesses to prove the case against the appellant.
4. P.W. Ihsanullah identified the dead body of the deceased at the time of post-mortem examination. P.W. Mohib Gul while narrating the incident rieterated the account he heard from the eye-witnesses. P.Ws. Muhammad Hayat and Aman Ali furnished ocular account of the incident as detailed above and deposed about the recovery of 3 empties of 7 mm and bloodstained earth made from the spot. P.W. Dr. Qaim Shah who conducted postmortem examination on the dead body of the deceased found a fire-arm entry and exit wound. In his opinion the death occurred due to damage to the heart and lungs as a result of fire-arm injuries. P.W. Muhammad Ashraf F.C.
Escorted the dead body from the police station to the mortuary of Civil Hospital Kalu Khan and on receipt of the last-worn clothes of the deceased which were stained with blood handed them over to the Investigating Officer in the presence of P.W. Mushtaq Hussain. P.W. Said Bustan, A.S.-I. Partially investigated the case, recovered 7 mm rifle at the instance of the appellant as a weapon of offence, prepared the site plan and then sent the weapon of offence to the Ballistic Expert for comparison and opinion. P.W. Niaz Muhammad Khan, A.S.-I. Registered the case against the appellant vide F.I.R. Exh.P.A. Prepared injury-sheet Exh.P.M. Inquest report Exh.P.M./1 of the deceased, sent his dead body for the post-mortem examination under the escort of Muhammad Ashraf F.C., proceeded to the spot, prepared the site plan Exh.P.B., took into possession 3 empties of 7 mm rifle, bloodstained earth from the spot last-worn clothes of the deceased, packed them into sealed parcels vide recovery memos. Exh.P.C., Exh.P.C./1 and Exh.P.C./2 respectively, recorded statements of the P.Ws. Obtained warrants under section 204 and proclamation notice under section 87 of the Cr.P.C. Against the appellant, sent the blood-stained earth and clothes to the Chemical Examiner and on receipt of his report placed it on the file. P.W. Roidad Hussain, Inspector Police Station Kalu Khan, arrested the appellant and after completion of all the necessary investigation forwarded him to the learned Additional Sessions Judge, Sawabi for trial.
5. On the close of the prosecution evidence the appellant was examined under section 342, Cr.P.C.
Who professed innocence and denied his involvement in the commission of the crime.
6. On the conclusion of the trial, the learned Additional Sessions Judge found the case of the prosecution to have been proved against the appellant beyond any shadow of reasonable doubt and thus, convicted and sentenced him as mentioned above.
7. The learned counsel appearing on behalf of the appellant contended that the charge at the door steps of the appellant has been flung without any rhyme or reason. He next contended that the motive as set up by the complainant is absolutely unbelievable as the appellant had least involvement in the marital affair of his brother Jehan Akber and as such had no axe to grind against the deceased or his family. If at all anybody, he contended, could have any grievance, he was the brother of the appellant, the husband of the lady who could have been expected to go to such an extreme of murdering the deceased, that too if the deceased was responsible for bringing the relation of the spouses to such a pitch. He further contended that the contradictions in the statements of the witnesses would lend ample support to the inference that they were not present at the scene of occurrence. He by referring to the report of the Fire-arm Expert contended that it belies the whole prosecution version as the empties recovered from the scene of incident could not have been fired from the rifle recovered at the instance of the appellant as those were of 8 mm bore.
8. Conversely the learned State Counsel assisted by the learned counsel for the complainant, contended that the ocular account being consistent and confidence inspiring, has rightly been relied upon by the learned trial Court. By referring to the contradictions he contended that the minor discrepancies may occur in the statements of the witnesses who are perfectly honest. Above all, he, by concluding his arguments contended that unexplained absconsion of the appellant would plug all the loop-holes if any in the prosecution evidence and bring guilt home to the appellant beyond any shadow of reasonable doubt.
9. We have carefully gone through the record and anxiously considered the submissions of the learned counsel for the parties. As far as the motive for the occurrence is concerned that appears to be inadequate on the face of it. The appellant, as it was rightly pointed out by his counsel, had no axe to grind against the deceased who had no hand in transforming the association of the spouses into estrangement and consequent ouster. There is also nothing on the record to show as to how and why the strained relations between the spouses mentioned above suddenly emerged as a reason to constitute a motive on the part of the appellant to go to such an eventuality of taking the life of the deceased particularly when the deceased or for that matter the appellant had nothing to do with that. The inadequacy of motive is further exposed from the statement of P.W.
Mohib Gul who stated in the Court that the marriage of his daughter took place four months prior to the occurrence and then again by changing that statement deposed that after the marriage of his daughter, she spent about four months in the house of her husband and thereafter four months in his house, a stance totally different from the one taken in the F.I.R. Where he stated that his daughter due to strained relations was living in his house for the last 8/9 months. Similarly the ocular account furnished by the eye-witnesses, so-called, also does not inspire confidence because of the varying and divergent statements of the witnesses, as P.W. Muhammad Hayat says that they were going to village Mada Khel at the relevant time whereas P.W. Aman Ali says that he alongwith the deceased and Muhammad Hayat P.W. Was going to Karkana Wand in connection with the purchase of tobacco. This statement to say the least besides being contradictory, appears to be an addition and improvement, contrived subsequently to justify his presence on the spot because none of the witnesses disclosed this earlier in their police statements. Another unconformable contradiction in the statements of the P.Ws. As to the existence of houses near the spot of occurrence according to the one and absence of any such houses according to the other would inescapably lead to the conclusion that they did not know about the exact place of the occurrence and thus, were not present there at the relevant time. The statement of P.W. Aman Ali that the dead body of the deceased was straightaway taken to the police station and the statement of P.W. Muhammad Hayat that it was first taken to the house of the father of the deceased would further make their presence on the spot highly doubtful. Moreover, the discrepancy between the number of shots fired at the deceased according to the eye-witnesses so-called and number of injuries on the person of the deceased according to the medical evidence would further support and strengthen the inference that the P.Ws. Were not present at the spot and had thus, not seen the occurrence. Apart from this, the failure on the part of the P.Ws. To account for their presence at the scene of occurrence will make them chance witnesses, who can never be relied upon in a case involving capital punishment unless corroborated by independent, impartial, non-partisan and trustworthy witnesses. The arguments of the learned counsel for the State and complainant in the light of the foregoing discussion are, therefore, of no consequence.
With regard to the absconsion, suffice it to say that even innocent person may go into hiding due to fear of unjustified harassm ent and victimization at the hands of the police. Moreover, it is too axiomatic to be stressed that absconsion at the most can be taken as corroborative of the charge and not the evidence of the charge.
10. As a sequel to what has been discussed above, this appeal is accepted and the impugned conviction recorded and the sentence imposed by the learned Additional Sessions Judge, Swabi on 8-6-1998 are hereby set aside and the appellant Khan Akbar is acquitted of the charge under section 302, P.P.C. If not required to be detained in any other cause he is directed to be released forthwith. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.