SARDAR MUHAMMAD RAZA, C.J.---This is an appeal filed by Razi Khan son of Haji Allah Din and Noor Rehman son of Sher Muhammad residents of Adanmai, District Nowshera against the judgment dated 14-5-1996 of the learned Sessions Judge, Nowshera whereby the appellants, were convicted under sections 302/34, P.P.C. And sentenced to imprisonment for life, for committing the murder of Iqbal Khan son of Mujahid Khan the F.I.R. Whereof was registered at No,87 dated 26-2-1994 of Police Station Akora Khattak lodged by Khan Zeb son of Badshah Gul, a cousin of the deceased.
2. Khan Zeb complainant has also filed Criminal Revision No,68 of 1996 seeking enhancement of the sentence to normal penalty of death and-also for awarding compensation under section 544-A, Cr.P.C. The appeal and the revision aforesaid shall be disposed of through this single judgment.
3. Khan Zeb son of Badshah Gul, having carried the dead body of Iqbal Khan to Police Station Akora, on 26-2-1994 at 6-45 hours lodged the report before S.H.O. To the effect that his cousin Iqbal Khan was employed at Pakistan Tobacco Company, Akora. On the eventful day, at 6-10 hours he was going to his office in routine to attend to his duty. Khan Zeb complainant was also going after him at some distance, the latter in order to ease himself. When Iqbal Khan reached in front of the house of one Ishaq Khan, the three assailants named Razi Khan, Noor Rehman and Nek Rehman appeared on the scene while armed with Kalashanikovs. All the three opened indiscriminate firing at Iqbal Khan with which he died on the spot. The occurrence was also witnessed by Tufail Khan, a brother of the deceased. The motive as disclosed by the complainant is to the effect that two years prior to the occurrence two brothers of Nek Reiman had been murdered for which they had suspected the deceased Iqbal Khan. At this juncture, it may be pointed out that said Nek Rehman is still absconder in the instant case.
4. After hearing the arguments of the learned counsel for the parties and Khawaja Azhar Rashid learned Assistant Advocate-General for the State we have observed that the most important and the only question involved- in the instant case is as to whether the alleged eye-witnesses, namely, Khan Zeb -complainant and Tufail Khan, the brother of the deceased were present on the spot and if what was the time of occurrence. Another important factor is that Khan Zeb complainant, according to his own admission, is an inimical witness because prior to the occurrence his brother Noorul Islam was injured for which Razi Khan appellant was charged amongst others. In these circumstances, we would require strong corroborative evidence in support of the statement of Khan Zeb who is inimical and the statement of Tufail Khan who is real brother of the deceased.
5. To start with, we will look into the motive. It is categorically stated with reference to the evidence that for the murder of two brothers of Nek Rehman, the persons charged were Shaukat and Sanobar but not the deceased Iqbal Khan. There is also no evidence of the indirect involvement of Iqbal Khan and hence the motive is doubtful. Though alleged, it is yet not proved.
6. It is admitted in evidence that the duty hour of the deceased started from 6-00 hours. As he was going on foot, he was supposed to have started at least 5-30 hours and if so done, the occurrence having taken place hardly about 1-00 yards from his house. The time should come to more or less the same 5-30 hours. According to calendar, the sunrise time on the day of occurrence is 6-45 hours. Measuring the time backward from the sunrise, we have no doubt to the effect that at 5-30 hours it must be dark too enough to identify the assailants. Measuring from the sunrise time, even 6-10 hours as given in the F.I.R. Would be dark.
7. It is admitted that the occurrence took place on Saturday. It is admitted that the deceased never used to attend the office on Saturday. It is not explained by the prosecution at all as to why on this Saturday alone the deceased had started for the office. The strong presumption is supported by the circumstantial evidence, that the deceased was not going to attend to his duty but in the small hours of the morning he might have gone to ease himself and thus was done to death by the awaiting enemies.
8. It is admitted that the deceased used always to go to his office by bicycle. It was only the day of occurrence when he had no bicycle. It is a case where like a chance witness, the deceased seemed to be a chance deceased. In the circumstances, we believe that the deceased in the dark hour of the morning had gone to ease himself and was never going to his office. To put it the other way round, it was an unseen occurrence.
9. Like the deceased being out of routine, the witnesses also seemed to be out of routine. Going out to attend the call of nature, is furnished as reason by Khan Zeb complainant in order to justify his presence on the spot. It is a routine of village people in this area that in order to attend the call of nature, they come out in the morning when it is dark. When it was for the complainant to attend the call of nature, it must be the dark hour of the morning and that is what we suspect that when the deceased came out at the same time, he also would have been to attend the call of nature. This fortifies our suspicion that the occurrence had taken place in the dark hour of the morning.
10. Let us assume that both, the deceased and the complainant, had come out for the purpose they alleged but what the real brother of the deceased, namely, Tufail Khan had been doing around being eighty paces away from the place of occurrence. He was not going to attend any office and he also was not going to attend the call of nature. His presence equally unnatural and unexplained.
Had he been present on the spot, he would have been to the Police Station with the dead body of his brother and he would have been the first to lodge the report. It is also not known as to what was the distance between the spot and their house. One says that it was eighty, the other says that it was one furlong, the Investigating Officer says that it was at a considerable distance and in the site plan it was not shown at all.
11. P.W. Khan Zeb being inimical, can be excluded on this score alone while P.W. Tufail can be excluded for the reason aforesaid. There are other reasons as well because they have contradicted themselves on material particulars. One said that the occurrence had taken place after sunrise while the other said that it was before sunrise. This is negated by the circumstance that it was much before the sunrise. The contradiction refutes the presence of both the witnesses. The complainant is said to have been following the deceased while in the site plan he is at a considerable distance, so much that in the relevant darkness the identification is not possible. It is admitted that the deceased was walking on metalled road; that the assailants were also on the metalled road but the same is negated by the site plan and the blood was recovered much away from the metalled road.
12. P.W. Ghulam Farooq is a relative of the deceased and states that the dead body was recovered in front of the house of Muhammad Ishaq. This totally negates the very spot of occurrence which is across the road from the house of Ishaq and away even from the road side. The same witness has made another baffling disclosure to the effect that when the Investigating Officer visited the spot, the dead body was lying on the spot. This is altogether irreconcilable. If the Investigating Officer on his visit to the spot found the dead body on the spot, it means that it was never carried to the Police Station as shown in the F.I.R. It means that nobody had lodged the report at the Police Station. It means that no one was there to lodge such report and subsequently the Investigating Officer came to the spot only when informed by any one. The statement of the Investigating Officer (P.W.10) is also contradictory in that behalf.
13. We are absolutely definite in our mind that it was an unseen occurrence having taken place in the dark hour of morning and the accused were charged because of enmity of Khan Zeb or because of suspicion. The accused are entitled to the benefit of doubt in a criminal case even if there is one doubt, whereas, in the instant incident the entire case is doubtful.
14. No doubt the appellants had remained absconders for about nine to ten months but this abscondence by itself cannot be used against the accused unless there are strong pieces of evidence connecting the appellants with the commission of offence, independently and otherwise.
15. Consequently, the appeal is accepted, the impugned conviction and sentences recorded by the learned Sessions Judge, Nowshera vide his judgment dated 14-5-1996 are hereby set aside and the appellants Razi Khan son of Haji Allah Din and Noor Rehman son of Sher Rehman are acquitted of the charge under section 302/34, P.P.C. If not required to be detained in any other case, they are to be released forthwith. The connected Criminal Revision No,68 of 1996 filed by Khan Zeb complainant for the enhancement of sentence is hereby dismissed. Any remarks or observations given in our judgment shall not affect the case of Nek Rehman absconder, as and when arrested and brought to trial.