' ABDUR RAUF KHAN LUGHMANI, J.---Through this appeal Mir Qad Ayaz son of Guldar of Nar Bostan, Police Station, Naurang has challenged the judgment, dated 21-10-1996 of Mr. Abdul Rehman Khan, Judge, Special Court Lakki whereby convicting the accused-appellant under section 302/34, P.P.C.
Sentenced him to imprisonment for life and a fine of Rs,50,000 or in default three years' R.I. In case F.I.R. No,237, dated 20-8-1990 of Police Station, Naurang on the charge of committing the murder of Hayatullah, in furtherance of his common intention with his co-absconding accused Gul Nawaz.
2. The prosecution case as spelt out in the First Information Report lodged by Shama Noorullah Khan (P.W.7) in brief, is that on 20-8-1990 at about 9-00 a.m. He alongwith his brother Hayatullah Khan, deceased were proceeding to their house from his shop. He was walking ahead while his brother was bringing up the rear. When they reached near the house of Gul Nawaz, absconding accused and Mir Qad Ayaz, accused-appellant armed with fire-arms suddenly appeared from the date trees and both of them fired at Hayatullah who was hit thereby and fell to the ' ground. One Rafiullah child also got injured as a result of firing. Thereafter, the accused ran away. Motive was given to the dispute over children. Both Rafiullah and the deceased were taken to Naurang Hospital. However, the deceased succumbed to the injuries on reaching the hospital. He charged Gul Nawaz, absconding accused and Mir Qad Ayaz, accused-appellant for killing his brother Hayatullah and injuring his newphew Rafiullah. This report was recorded by way of a 'Murasila'
Exh.P.A./1 by Muhammad Akbar Khan, A.S.I., (P.W.12), in the hospital. The 'Murasila' was sent to the Police Station where Muhammad Ayub Khan, A.S.-I. (P.W.4) incorporated the same in F.P.R., Exh. P.A.
And a case under sections 302/307/34, P.P.C. Was accordingly registered. Muhammad Akbar Khan (P.W.12) prepared the injury sheet of injured Rafiullah and of deceased Hayatullah. He also prepared the inquest report of the deceased. The dead body of the deceased was despatched to the Mortuary for autopsy. He thereafter, proceeded to the spot and prepared the site plan Exh.P.B.
He took into possession bloodstained earth. He also recovered 5 empties of 7.62 bore (Kalashnikov) two empties .303 bore (rifle). Two bullet head of Kalashnkov and one bullet head of .303 bore were also recovered and taken into possession. During investigation it also transpired that one Mst.
Bakhtawara had also received fire-arm injury in transaction. The Investigating Officer set the lady to the hospital for medical examination after preparing her injury sheet. On the basis of supplementary statements of the alleged eye-witnesses, Hukam Zad was also arrayed as an accused and accordingly Muhammad Akbar Khan (P.W.12) formally arrested him on 25-8-1990.
Since Gul Nawaz, absconding accused and Mir Qad Ayaz, appellant were not available warrants under section 204, Cr.P.C. Were obtained for their arrest and subsequently proceedings under sections 87/88, Cr.P.C. Were also initiated. Mir Qad Ayaz, accused-appellant was arrested on 5-5- 1992 by Mian Dad Khan, S.H.O., (since dead) and accordingly supplementary challan was put in the Court against him.
3. In order to establish its case the prosecution examined as many as twelve witnesses.
4. Autopsy on the dead body of Hayatullah Khan, deceased was performed by Doctor Altan Hussain (P.W.2) and on external examination the following injuries were found on the corpse:--
1. One entrance wound of fire-arm on right and lateral side of abdomen just above right iliac crest, size 1/3" x 1/3" x cavity deep.
2. One exit wound of fire-arm on lateral side of left buttock 4" below left iliac crest size 2" x 1".
' On internal examination abdominal wall, small and large intestines and blader were all found injured. Death in the opinion of the Doctor, was caused due to injuries to the vital organs resulting in haemorrhage and shock. Time between injury and death was half to one hour and that between death and post-mortem examination 3 to 4 hours.
5. Rafiullah aged 5/6 years was examined by Doctor Amir Huinza (P.W.1) who found one fire-arm wound: on the front of skull (forehead) 1/8" x I'M", on his person. The nature of the injury was simple and the blood probable duration was 1 to 3 hours. Doctor Salim Khan (P.W.3) had examined Mst.
Bakhtawara on 24-8-1990 and had found one entrance wound 1/4" x 1/4" with irregular margin on her left buttock. The nature of injury was simple and the duration was 3 to 4 days.
6. The pivot prosecution witnesses are Shama Noorullah Khan (P.W.7) and Hamzar Ali Khan (P.V.8) who have claimed to be the eye-witnesses of the occurrence. According to Shama Noorullah Khan, on the day of occurrence at about 9-00 a.m., he alongwith his deceased brother Hayatullah Khan were returning from their shop and were proceeding to their house. When they reached near the spot they saw Hukam Zad (acquitted accused) 4 'armed with D.B. Shotgun standing near corner of the street. They further saw Gul Nawaz, absconding accused and Mir Qad Ayaz, accused-appellant near a date tree. Gul Nawaz was armed with Kalashnikov while Mir Qad Ayaz was armed with .303 bore rifle. Both of Gul Nawaz and Mir Qad Ayaz fired at them with their respective fire-arm as a result of which Hayatullah Khan was hit and he fell down. He further deposed that soon thereafter Hukam Zad, accused fired two shots with his shotgun as a result of which his minor nephew Rafiullah and one lady Mst. Bakhtawara were injured. He stated that Hamzar Ali (P.W.) was also present near the spot and had witnessed the occurrence. Hamzar Ali Khan (P.W.8) deposed that on the eventual day at about 9.00 a.m. He was present in the nearby field for cutting grass when he saw Gul Nawaz, absconding accused armed with Kalashnikov and Mir Qad Ayaz, accused- appellant armed with .303 bore rifle present around the spot. He also saw complainant Shama Noorullah Khan and deceased Hayatullah Khan coming from the shop towards their house. He noticed Hukam Zad, accused appearing from the turn of the street to the west. Mir Qad Ayaz and Gul Nawaz fired at the deceased and got injured while Hukum Zad fired two successive shots from his shotgun as a result of which Mst. Bakhtawara and Rafiullah were hit and injured. According to him Rafiullah was child of about 5/6 years and thus, could not give statement while Mst.
Bakhtawara was not prepared to depose against the accused due to fear as also having been given some money.
7. The learned trial Ridge found the prosecution case having been successfully established against accused-appellant Mir. Qad Ayaz alongwith absconding co-accused Gul Nawaz regarding murder of Hayatullah, deceased and accordingly convicted the accused-appellant under section 302/34, P.P.C.. And sentenced him to imprisonment for life and a fine of Rs,50,000 or in default further three years' R I. The learned trial Judge, however, disbelieved the evidence of two eye-witnesses regarding the charge against Hukam Zad, accused and accordingly extending him benefit of doubt acquitted him. By the said judgment the learned trial Judge also acquitted the accused- appellant of the charge under section 307/34, P.P.C. For causing injuries to Rafiullah and Mst.
Bakhtawara.
8. Arguments of Mr. Dost Muhammad Khan, learned counsel for the appellant, Syed Saeed Hassan Shah Sherazi, Assistant Advocate-General on behalf of the State and Mr. Khawaja Muhammad Khan, Advocate counsel for the complainant heard and record of the case has been thoroughly examined.
9. Both Shama Noorullah Khan (P.W.7) and Hamzar Ali Khan (P.W.8) are real brothers of Hayatullah Khan, deceased and as per their own contention of previous enmity between the parties, they are interested witness and their evidence would require thorough scrutiny. In the report Shama Noorullah Khan nowhere named his brother Hamzar Ali Khan to be either present near or about the vicinity or having witnessed the occurrence. Similarly in the report this witness neither made any reference towards receipt of fire-arm injury by Mst. Bakhtawara nor did he name Hukam Zad, acquitted accused to be standing near the scene of occurrence armed with a D.B. Shotgun. At the trial this witness has given completely a different story of the occurrence with the clear intent to fit in the medical evidence. In the report Shama Noorullah Khan stated that Mir Qad Ayaz, accused- appellant and Gut Nawaz, absconding accused armed with firearms fired at the deceased with which he was hit. At the trial he stated that Mir Qad Ayaz accused-appellant was armed with .303 bore rifle while Gul Nawaz, absconding accused was armed with Kalashnikov. No doubt the use of word "Topak" would cover all type of fire-arms but at the same time it also appears io be a deliberate manipulation because in this part of the country every one even of tender age are well- aware of the various types of weapons. In the F.I.R., this witness reported that when he and his deceased-brother reached near their house his brother was fired upon, by Gul Nawaz and Mir Qad Ayaz with 'Topaks'. In his statement at the trial he has stated that when they were close to their house they saw Gul Nawaz absconder and accused-appellant near a date tree apart from each other and that both these accused fired at him and his brother Hayatullah, deceased with their respective fire-arms. He went on to say that soon their after Hukam Zad, accused fired two shots with his shotgun as a result of which his minor nephew Rafiullah and one lady Mst. Balchtawara got injured. In the F.I.R., however, he nowhere referred to firing by Hukam Zad, acquitted-accused or receiving any injury by Mst. Boiditawara. Regarding receipt of injury by his nephew Rafiullah in the F.I.R. This witness had deposed that as a result of firing by Gul Nawaz and Mir Qad Ayaz at his brother Hayatullah, Rafiullah also received fire-arm injury. Now this is the height of departure from the First Information Report which though not a substantiative piece of evidence is an instrument which brings the prosecution in motion. Since, by the time, the report was recorded, neither the deceased had been medically examined nor Rafiullah, the injured body was examined, the complainant Shama Noorullah Khan could not be certain about the weapon with which the deceased and the child received injuries. However, after the medical examination and the recoveries of 5 empties of 7.62 bore and 2 empties of .303 bore from the spot, at the trial, the witness has attributed particular type of weapon to the accused-appellant and the absconding accused so as to fit in with the recoveries made at the spot and the nature of injuries received by the deceased. As has been pointed out earlier acquitted accused Hukam Zad was neither charged in the F.I.R. Nor was he attributed firing two shots with his D.B. Shotgun which resulted in injuries to Rafiullah and Mst. Bukhtawara. At the trial he has given a specific role to Hukam Zad being armed with a D.B. Shotgun and firing two shots resulting in injuries to minor Rafiullah and Mst., Bakhtawara.
This again points towards the attempt by the prosecution witnesses to tally with the medical evidence as the dimention of the injuries received by Rafiullah and Mst. Bakhtawara pointed towards pellet injuries and to procure the weapon containing pellets, it appears that Hukam Zad was charged and was given weapon of a shotgun.
10. Besides all the improvements/ exaggerations and complete departure from the initial story, the evidence of the two eye-witnesses is further discredited by the medical evidence. According to the Doctor the time between death and Post-mortem examination was 3 to 14 at 10-30 a.m. Thus, the Postmortem was performed within one and half hour of the occurrence. In that sense the observations of the Medical Officer casts doubt over the actual time of occurrence and thereby a doubt regarding witnessing of the occurrence by the two eye-witnesses. The receipt of injury on the person of the deceased also does not suggest his instantaneous death and even Medical Officer has given the time between injury and death as half to one hour. Location of the injury also does not suggest that the deceased immediately on receipt of the injury should have gone in comma. There is no evidence regarding any narration by the . Deceased during the interval of receipt of injury, and his death. In these circumstances the manner and the time at which the occurrence took place becomes doubtful.
11. Both the eye-witnesses have deposed at the trial that with the fire shots of Hukam Zad acquitted accused minor Rafiullah and one lady Mst. Bakhtawara got fire-arm injuries. Neither Rafiullah nor Mst. Bakhtawara were produced at the trial. Having the stamp of fire-arm injuries these two witnesses were the natural witnesses. Rafiullah was not produced being of tender age. Mst.
Bakhtawara was claimed not to support the prosecution case due to fear and for having allegedly received some money. On the other hand the said lady Mst. Bakhtawara is closely related to the deceased party. She is the real aunt of the two alleged eye-witnesses. The concealment in the F.I.R.
Regarding injury caused to Mst. Bakhtawara and subsequently dubbing her to have been won over by the deceased party, would further create doubt that had the said lady been produced at the trial, she would not sing in the tone the prosecution wanted. It is strange enough to notice that according to Shama. Noorullah (P.W.) while lodging the report in the hospital Mst. Bakhtawara was present with him but she was neither medically examined nor was she mentioned in the F.I.R. To have witnessed the occurrence. This all speaks towards the fact that firstly, the occurrence did not take place in the manner alleged by the prosecution with drastic improvement/exaggeration and secondly the defence version as given by Mir Qad Ayaz in his statement under section 342, Cr.P.C.
Coupled with the statement of Bashir (C.W.1) who had lodged a report regarding cross-firing between parties other than the accused charged vide F.I.R. No,238 on the same day and at about the same time all taken altogether would make the prosecution story completely in credible and conviction on such shaky and unreliable evidence would be defeating the general principle of criminal justice that benefit of doubt in each case shall be extended to the accused. In Muhammad Ilyas and another v. The State (1993 SCM R 1602) the august, Supreme Court held that where ocular evidence did not inspire confidence and it was doubtful whether eye-witnesses had seen the occurrence where the occurrence did not appear to have occurred in the manner asserted by the prosecution and where on the basis of the same ocular evidence co-accused was acquitted, the accused were entitled to be extended the benefit of doubt in the circumstances. In another case reported as Muhammad Banaras and another v. The State 1988 SCM R 931 the august Supreme Court held as doubtful the prosecution case against the accused-appellant where. The prosecution had placed distorted facts of the occurrence and where not a single disinterested person was produced in support of the charge. It was further held that acquittal of two, accused in a murder charged by disbelieving prosecution case as well entitled the accused-appellants also to acquittal whose case was in no way distinguishable from the acquitted accused. It was held that it was duty of the Court to keep prosecution and defence evidence in juxta position and Court would not be justified taking into consideration evidence adverse to case of the accused. But avoiding evidence favourable to him.
From whatever angle we may look at the prosecution case ' it has failed to establish its case against the accused-appellant beyond the reasonable doubts and accordingly extending the benefit of doubt while accepting this appeal we set aside the conviction and sentence of the accused-appellant. He shall be set at liberty forthwith if nor wanted in any other case. The accused was directed to be released by our short order, dated 26-1-1999 and these are the reasons for the said order.