' TALAAT QAYYUM QURESHI, J.--- The appellant had earned conviction under section 302, P.P.C. And sentenced to R.I. For 25 years with fine of Rs,50,000 or in default thereof to suffer further S.I. For 6 months. The fine if realized, half shall be paid to the L.Rs, of the deceased as compensation under section 544-A, Cr.P.C. The benefit of section 382-B, Cr.P.C. Was also extended to him vide judgment and order, dated 18-6-1999 passed by the learned Additional Sessions Judge-II, Peshawar.
2. Shah Nawaz Khan on 17-12-1988 at 12-45 p.m. Made report in Casualty Lady Reading Hospital, Peshawar, where he, had brought Dost Muhammad son of Naubat Khan aged about 25 years, an Afghan Refugee in injured condition that Dost Muhammad then injured (now dead) was lying in injured condition in market situated at Tehkal Payan, Tehsil and District Peshawar and crowd of people had gathered around him. On enquiry people informed Shah Nazar, complainant that Dost Muhammad (deceased) was fired at by the Thekedar of Tehsil. He lifted the injured and brought him to Casualty and reported the matter to Dhar Muhammad Khan, A.S.-I., who drafted Murasila Exh.P.A./1, which culminated into registration of a case vide F.I.R. Exh.P.A.
3. After completion of investigation, challan of the case was put into the Court of learned Additional Sessions Judge-II, who formally charged the accused, who did not plead guilty and while professing innocence, claimed trial.
4. The prosecution in order to prove its case examined as many as 13 witnesses. The accused was examined under section 342, Cr.P.C. He, however, refused to be examined on oath under section 340(2), Cr.P.C. Or to produce any defence.
3. Dr. Khalid Khan was examined as P.W.6. He had on 7-12-1988 at 3-15 p.m. Conducted autopsy on the dead body of deceased Dost Muhammad and found the following:- "External examination ' A young boy of about 26/24 years of age was lying dead P.M. Staining and R.M. Started.
Wounds
(1) Fire-arm entry wound 1/2" x 1/4" on front of right side of chest. It is 1" from right nipple and 3" from mid line.
(2) F.A. Entry wound 1/4" x 1/4" on the inner (unia) side of right forearm 1-1/2" from and above the wrist-joint.
(3) F.A. Exit wound 1/2" x 1/2" on front of right lower fore-arm 2" from and above the wrist-joint.
Internal examination ' Thorax walls healthy except at the site of injury. Pleurae on right side, right lung, paricardium and heart injured. Blood vessels great and healthy. Peritoneum diaphragm, small intestines were injured.
Opinion ' In his opinion the cause of death was severe haemorrhage and shock due to injuries to vital organs i.e, heart, lung, intestine, caused by fire-arm weapon. Probable time between injury and death within thirty minutes and between death and post-mortem 2 to 4 hours. Qamiz, Shalwar and Banyan blood-stained, labelled and handed over to the police. The Qamiz having entry mark is marked. The bullet which was recovered was sealed, labelled and handed over to the police. Post- mortem report is Exh.P.D./2 which is in his handwriting and correctly bears his signature. He deposed that the inquest report Exh.P.D./1 also bears his signature."
6. Nauroz, A.S.-I. P.W.2, Syed Qasim Shah, F.C. (P.W.3), Said Amir (P.W.5) and Hashma (P.W.9) were examined being marginal witnesses of various recovery memos. Gul Mast Khan, A.S.-I. (P.W.4) on receipt of Murasila Exh.P.A./1 had registered case vide F.I.R. Exh.P.A. All the abovementioned P. Ws.
Affirmed their signatures on the recovery memos. And F.I.R. To be correct.
7. Shah Nazar, complainant when examined, narrated the same story as put forward by him in Murasila Exh.P.A./1.
8. Munawar son of Haji Jafar Khan was examined as P.W.7.. He claimed to be eye-witness of the occurrence and stated that on the day of occurrence he was present in his shop. Saadullah accused, passed by his shop and nodded with some shopkeepers' who enquired from him as to where he was going. At this the accused uttered bad words about Afghan people. The deceased who was also an Afghan Refugee started altercation with him. They were separated, accused was taken to his house and pacified. After some time accused came out of his house duly armed with pistol. He alongwith others came to pacify him. In the meanwhile the deceased went towards him and accused fired at him with which the deceased got hit at his chest and hand and fell down. He was taken into hospital by the witness and others where he died. He then accompanied the Investigation Officer to the spot and site plan Exh.P.B. Was prepared at his instance.
9. Malang son of Gul Salman was examined as P.W.10 but was declared hostile at the request of the learned Public Prosecutor and was cross-examined by him.
10. Khan Raziq, S.H.O. Police Station Hashtnagri was examined as P.W.12. He had investigated the case. Prepared site plan Exh.P.B. At the pointation of P.W. Recovered blood-stained earth from the spot Exh.P.5 took into possession vide recovery memo. Exh.P.C./3 and sealed the same into parcel in presence of marginal witnesses. He also recovered one empty of .32 bore from the roof of accused, another empty of .32 bore and missed cartridges of 7 m.m. From the spot and took into possession vide recovery memo. Exh.P.C./2. He also took into possession vide recovery memo. Exh.P.C./1. One shirt P.1, ShalvGar P.3 and Banyan P.4 belonging to deceased sent by Doctor who sealed the same into parcel. He also took into possession one sealed bottle containing spent bullet P.1 recovered from the dead body of deceased by Constable Awal Shah vide recovery memo. Exh.P.C. All the recovery memos. Correctly bore his signatures as well as that of marginal witnesses He also sent blood-stained earth and bloodstained clothes of deceased vide application Exh.P.E to the Chemical Examiner. He also sent empties of .30 bore alongwith missed cartridges of 7 m.m. To Arms Expert vide application Exh.P.E./1. He recorded the statements of the P.Ws. He also got recorded statements of P.Ws. Munawar Khan and Malang under section 161, Cr.P.C. His application Exh.P.W.12/1. He also vide application Exh.P.E./2 requested the Arms Expert for examination of the bullet hole of the main gate of Khyber Market for submission of his opinion, obtained warrant of arrest against accused vide his application Exh.P.F. He obtained proclamation vide application Exh.P.F./1 against the accused, opinion of the Fire-arm Expert about hole was received by him as Exh.P.E./3 while report of Chemical Examiner about the bloodstained earth and clothes was Exh.P.E/4.
11. Iqbal Hussain the then S.H.O. (now dead) had submitted a supplementary challan and this witness was also conversant with signatures of the said S.H.O.
12. Messrs Barrister M. Zahurul Haq and Khawaja Muhammad Khan, learned counsel representing the appellant argued that the prosecution has failed to produce any eye-witnesses of the occurrence and Munawar (P.W.7) alleged eye-witness was not present on the spot and that was the reason that his name was neither mentioned in the F.I.R. Nor Shah Nazar in his statement recorded before the Court stated that Munawar was present at the time of occurrence. Munawar was inducted later on by the Investigating Agency to prove its case. Moreover, the conduct of the said witness (P.W.7) leaving the deceased in serious injured condition and going to Kacha Garhi to inform the relatives of the deceased about the occurrence is not understandable and was not natural.
13. It was also argued that there were material contradictions between the statements of Shah Nazar (P.W.6) and Munawar (P.W.7).
14. There were also contradictions with regard to the recovery of the empties from the spot.
15. It was further argued that the medico-legal report and the postmortem report also do not support the case of prosecution.
16. Regarding statement of Malang (P.W.10) it was argued that though he was declared hostile but he was never confronted with those portions of his statement which were recorded earlier, therefore, his statement was not admissible and the learned trial Court erred in placing reliance on his statement.
17. On the other hand Mr. Javed A. Khan, the learned counsel representing the complainant and Said Tahar Khan the learned counsel representing the State argued that since accused was charged in a promptly lodged F.I.R., therefore, the question of substitution would not arise.
' Munawar (P.W.7) was the only eye-witness who was running his shop in Khyber Market in front of which the occurrence took place. The said P.W. Has given eye-witness account of the occurrence and proved the case of prosecution.
18. It was also argued that post-mortem examination supports the case of prosecution. Wound No,1 is on the right side chest and the bullet was recovered from intestine at the lower cavity which means that the fire was made from the roof top. The prosecution has proved its case through ocular testimony which was duly supported by the recoveries from the spot and the medico-legal report, therefore, the impugned judgment/order warrants no interference.
19. We have heard the learned counsel for the parties and perused the record of the case.
20. In this case the prosecution examined Munawar (P.W.7), as alleged eye-witness of the occurrence but his testimony is not confidence-inspiring for the reasons firstly, his presence on the spot at the time of occurrence was doubtful.
' In the examination-in-chief he stated:- ' "Accused Saadullah passed by our shop. Nodded with some shopkeepers who inquired from me as to where and he is going. At this the accused uttered some bad words about Afghan people.
The deceased who was also an Afghan entered into an altercation with him. We separated both.
We took the accused to his house and pacified him. After some time accused came out of his house duly armed with pistol. We gathered there to pacify him. In the meanwhile the deceased went towards him. The accused fired at him with two of which the deceased got hit on his chest and hand. He fell down. We took him to the hospital where he later on died. I came back to the shop and accompanied the Investigating Officer to the spot. He prepared the site plan at my instance."
' But in cross-examination he stated:-- ' "The accused climbed on the roof top of his house and fired at the deceased. After the first firing the people gathered on the spot but during the second firing people went away."
' He further stated:-- ' "From the roof top (tower) he fired five shots with interval of 3/4 minutes. I had stated before the Investigating Officer that the accused had made second fire from the roof top (tower) of his house."
21. The abovementioned contradictions in the examinatipn-in-chief and cross-examination of this witness show that his presence on the spot was doubtful, therefore, he had not seen the occurrence.
' Secondly, the site plan shows that the deceased was hit at point No,1, which is in front of the market wherein the shop of Munawar is situated. On point No,1 there was a hole made by bullet in the gate of the market, but the accused/appellant has been shown at point No,2 in the site plan which is situated at Qafila Road and the distance between points Nos.1 and 2 as per site plan is 18 paces. If a person is sitting in Khyber Market in front of which the deceased was hit, then he cannot see as to who fired from point No,2 as point No,2, as mentioned above, is 18 paces away. The site plan Exh.P.B. Shows that accused appellant fired from point No,2 at the deceased, whereas Munawar P.W.7 stated that he made fires from roof top of his house. The site plan Exh.P.B., therefore, does not support the case of prosecution.
' Thirdly, the conduct of Munawar P.W.7 was not natural. The deceased was his cousin. He was hit by fire-arm and was lying in seriously injured condition on the spot for 15/20 minutes, blood was oozing from the injuries of the injured but this witness neither cared to bandage the injuries after the firing stopped nor did he care to take him to hospital to save his life. On the contrary he left him in injured condition at the mercy of other people who had assembled there and left for Kacha Garhi to inform his relatives through Public Transport. His conduct also shows that he was either not present on the spot or he did not put forward the correct version of facts.
' Fourthly, he did not mention in his statement regarding presence of Shah Nazar (P.W.6) at the time of occurrence on the spot. In his examination-in-chief, Munawar P.W.7 stated:-- ' "He fell down. We took him to hospital where he later on died."
' Whereas Shah Nazar has stated that it was he who took the deceased in injured condition to the hospital. Shah Nazar P.W.6 in his statement did not mention that Munawar P.W.7 was present on the spot when the injured was taken to hospital.
' Fifthly, there are contradictions between the statement of Munawar P.W..7 and Shah Nazar P.W.6.
The later stated that Munawar is his brother and he resides separately, whereas Munawar has stated that he lives in the same house with Shah Nazar.
22. There are contradictions about the recoveries of empties from the spot. Hasham P.W.9 stated that the Investigating Officer in his presence took into possession 3 empties of .32 bore pistol and 2 empties of 7 m.m. Bore from the roof of the Kotha of accused Saadullah vide recovery memo.
' Exh.P.C./2, whereas recovery memo. Exh.P.C./2 shows that 2 empties of .32 bore having smell of freshly discharged were recovered from the roof top of house .Of the accused, one missed cartridges of .32 bore and one missed cartridges of 7 m.m. Bore were recovered and taken into possession by the Investigating Officer.
23. Khan Raziq (P.W.12) the Investigation Officer stated that he recovered one empty of .32 bore from the roof top of the accused house and he also recovered another empty of .32 bore and missed cartridge of 7 m.m. From the spot vide recovery memo. Exh.P.C.
' Hasham P.W.9 stated that the Investigating Officer reached the spot at 11-00 a.m., whereas, the occurrence took place at 12-15 p.m., how could the S.H.O. Reach one hour and 15 minutes earlier than the occurrence had taken place. Khan Raziq (P.W.12), Investigating Officer stated that he reached the spot at 1-45 p.m.
24. So far as the post-mortem report Exh.P.M. Is concerned, there is a fire-arm entry wound 1/4" x 1/4" on the inner (ulna) side of right forearm 1-1/2" from and above the wrist-joint. The corresponding exit wound 1/2" x 1/2" on front of right lower forearm 2" from and above the wrist-joint shows that the corresponding entry wound was from the same level as that of entry wound which means that injury No,2 was caused not from the firing made from roof top of the house of the accused, but from the same level where the accused was shown to be standing. No doubt injury No,1 has no corresponding exit wound but the bullet was recovered from small intestine which indicates that the deceased was hit on the right side of chest and the bullet travelled down to small intestine. The seats of injuries Nos.1 and 2 show that injury No,1 was caused from firing made from the roof top whereas injury No,2 was caused from the level where the deceased was shown to be standing, but the case of the prosecution as put forth by Munawar P.W.7 is that the accused- appellant made 5 fire shots from the roof top of his house with which the deceased was hit. The post-mortem report Exh.P.M. And medico-legal report Exh.P.W.8/1 do not fully support the prosecution version.
25. The learned trial Court has also taken into consideration the statement of Malang (P.W.10). As he had in his statement recorded under sections 161 and 164, Cr.P.C. Supported the case of prosecution. This witness (P.W.10) was declared hostile at the request of the learned Public Prosecutor by the trial Court. His statement should have been discarded straightaway for two reasons. Firstly, in his cross-examination he stated that:- ' "It is correct that my statement was recorded by Magistrate in the present case but that statement was given under coercion of police.
' It is correct that I had stated in my said statement that I was present on the spot, however, I was pressurised by police to give such statement."
' So, the statements given by him under sections 161 and 164, Cr.P.C. Were the result of coercion and pressure put by the police.
' Secondly, the prosecution did not bother to confront him with those portions of his statements which were to be used as evidence in the case. His statement was, therefore, not admissible. In Ananta Kumar Sarkar v. Sebarate ulla Sardar PLD 1966 Dacca 114 it was held that:-- ' "A previous admission of a party who has gone into the witness-box on the point in issue and in the witness-box has made a statement inconsistent with the admission or the statement made in the witness-box is such which involves a denial of the previous admission cannot be used as legal evidence in the case against that party unless the attention of the witness during cross- examination was drawn to that statement and he was confronted with specific portions of that statement which were sought to be used as admission. Without complying with the procedure laid down in section 145, Evidence Act, 1872, the admission contained in the previous statement cannot be used as legal evidence against that party."
26. We feel persuaded by the arguments of the learned counsel for the appellant and tend to accept the appeal in hand for the reasons firstly, the presence of solitary eye-witness namely Munawar at the time of occurrence on the spot is highly doubtful for the reasons discussed in detail above, therefore, his testimony is not worthy credence. It is not necessary that there should be more than one reason in the circumstances, if one reason creates reasonable doubt in reasonable mind regarding presence of a witness, that alone would be sufficient for discarding statement of that witness. Wisdom in this regard has been sought from Riaz Masih alias Mithoo v.
The State 1995 SCM R 1730.
' Secondly, there are material contradictions between the statements of Hasham (P.W.9) and Khan Raziq (P.W.12) viz-a-vis the site plan Exh.P.B.
' Thirdly, the offence has not been committed from the place, where allegedly the appellant was shown present. Site plan Exh.P.B. Shows that the appellant was present at point No,2 whereas Munawar (P.W.7) has stated that the appellant fired 5 shots from roof top of his house.
' Fourthly, the medical evidence does not fully support the case of prosecution. Injury No,1 appears to have been caused from the roof top and injury No,2 from the same level where the deceased was standing at the time of occurrence. This inconsistency between the ocular evidence and medical evidence appears to have escaped notice of the trial Court.
' Fifthly, the occurrence has not taken place in the manner put forth by the prosecution. Munawar (P.W.7) has contradicted himself. In the examination-in-chief he stated that the deceased came near to the appellant when he was fired at whereas in the cross-examination he stated that appellant fired from the roof top of his (appellant) house.
' Sixthly, the conduct of Munawar (P.W.7) is not natural. He left the deceased in injured condition at the spot to inform his relatives. He did not try to save his life or to shift him to hospital.
Seventhly, there are contradictions in the statements of Shah Nazar (P.W.6) and Munawar (P.W.7) regarding their residence. Shah Nazar neither in the F.I.R. Mentioned the presence of Munawar at the spot nor stated a single word in his statement recorded before the Court about his presence.
Similarly Munawar also in his statement did not state that Shah Nazar had come to the spot in his presence.
' Eighthly, in F.I.R. One "Thekadar" was charged for firing shots at the deceased, but there is no evidence on record that appellant is known as Thekadar.
Ninethly, the learned trial Court has not properly appreciated the evidence available on record. We, therefore, accept the appeal in hand, set aside the conviction and sentence awarded vide judgment, dated 18-6-1999 by the learned Additional Sessions Judge-II, Peshawar and acquit the appellant of the charges levelled against him. He shall be released forthwith if not required in any other case.