' SARDAR MUHAMMAD RAZA KHAN, C.J.---Faqirullah son of Fateh Muhammad (28) resident of village Panjpir Swabi, having been charged for the murder of one Siraj Muhammad, was tried by the learned Sessions Judge, Swabi under section 302, P.P.C. Vide judgment dated 20-12-1997, he was held guilty under section 302(b), P.P.C. And sentenced to imprisonment for life, in addition to a fine of rupees fifty thousand. He has filed the instant Criminal Appeal No,22 of 1998 against such conviction and sentence.
2. Vide another judgment of even date, Faqirullah was also convicted under section 13, Arms Ordinance and sentenced to seven years' rigorous imprisonment. He has filed a separate Criminal Appeal No,21 of 1998 against such conviction. Both the appeals shall be decided through this single judgment.
3. One Abdul Majeed, his cousin Amjad Ali, deceased Siraj Muhammad and one brother-in-law of the deceased, namely, Raziq Khan were present in the Baithak of one Jamil Bacha in village Panjpir on 4-1-1992. At about 18-30 hours, all four of them left the Baithak of Jamil Bacha for their homes.
The moment, they stepped on the thoroughfare Faqirullah appellant armed with fire-arm appeared on the scene and opened fire at Siraj Muhammad with which he got hit and died on the spot. The appellant decamped without any resistence because the complainant party was unarmed. The motive was narrated to the effect that about one and a half month prior to the occurrence, one Nazirullah, the brother of appellant was murdered for which Siraj Muhammad deceased was suspected.
4. The dead body of Siraj Muhammad was taken to Police Station Swabi, where at 19-45 hours Abdul Majeed lodged the report as aforesaid. The prosecution examined Abdul Majeed (P.W. 3) and Amjad Ali (P.W.4) as eye-witnesses while Raziq Khan was abandoned. The prosecution relies upon the testimony of two eye-witnesses, receiving support from the recovery of ten empties and a spent bullet, the recovery of a bulb from outside the house of Jamil Bacha in support of the identification, prolonged abscondence of the accused who was arrested on 18-6-1996 alongwith a kalashnikov that matched with the empties recovered from the spot and, of course, the motive disclosed in the F.I.R. Support is also sought from the post-mortem report wherein the injuries tallied with the empties recovered.
5. Mr. M. Zahurul Haq, Bar-at-law, learned counsel for the appellant challenged the conviction on manifold grounds. First among them was, that it is an unwitnessed occurrence for which interested witnesses were produced and the entire case of prosecution was fabricated during a delay of seventy-five minutes, which should not have been caused to cover a distance of only 4/5 kilometres. In this respect, if we appreciate the occurrence in the light of the evidence and circumstances available, we tend to notice that on the day of occurrence the official time to sunset was 17-19 hours, whereas, the occurrence had taken place at 18-30 hours i,e, about 71 minutes, after the sunset. One can take judicial notice of the fact that, with the passage of such time, it becomes complete dark. If we believe the narration of time of occurrence to be correct as 18-30 hours, it would sound logical because any assailant who has come with a modus operandi of hit-and-run, would obviously choose a time when it is complete dark and when it is convenient for him to run away as well as to conceal his identity at the same time. This is but natural for any assailant to operate.
6. Faced with this situation, it appears that in order to assure identification, the bulb was introduced for the first time while preparing the site-plan and the surprising part of narration is that bulb was not mentioned to be in existence by any of the witnesses when they entered the witness-box. We hold, that the introduction of bulb is a concoction as well as a matter completely afterthought.
7. It is an oft-quoted phrase regarding the appreciation of evidence substantially in criminal justice that, "men may lie but the circumstances do not". Thus, every human narration is always susceptible, to be checked on the touchstone of circumstances as well as with reference to a normal human conduct. In the circumstances of the present case, it is settled that the occurrence had taken place in the dark of night. Any assailant who selects the time of darkness would do so in order only to conceal his identity. When once the assailant has chosen such time, it would be extremely unnatural for him to appear on the scene in a manner that he is clearly witnessed by not one but three persons. The conduct of the assailant in the instant case, would also be judged in such background. If a bulb is lit in the street making him available to the sight of others, it would never be safe and logical for the assailant to initiate the attack.
8. The second important factor is, that the assailant is exposing himself to not one but four persons about whom he had little idea if they were armed or not. One of them i,e, the deceased is suspected for a murder, that had taken place only one and a half month ago and thus it could not be expected of him and his close companions to have been roaming about in the village unarmed.
In these circumstances as well, the assailant could never have taken the risk of coming close to four persons who, also were most likely to be armed as well. The conduct of the assailant does not commensurate with normal human actions and reactions.
9. When once, if believed, that the assailant had been unwise enough to expose himself to be identified by four persons, the normal reaction would be that after completing his job, he would run away to a direction where, he cannot be apprehended. Referring to the site-plan, the accused- appellant is cited at point No,2, which is to the West of the four persons of the complainant party. If he happened to arrive from the West, the natural course would be that he should retrace his steps and run back, whereas, the witnesses are unanimous to the effect and that too in their statements in Court that the accused ran away to the East. This is an improvement made at trial, little realising that no assailant would run towards a side where four persons of the complainant party are already present. This practically can never happen because he could have been apprehended or killed while passing by three persons of the complainant party. Another interesting aspect of the improvement is, that the assailant, after the occurrence, is said to have been running not away from but towards the source of light. No one would believe such conduct if the things are to be appreciated under the normal course of human conduct.
10. The accused located at point No,2 is immediately facing a street that runs to the North of the spot. He could have very well entered such street in the North and could have disappeared in the dark after a few leaps but the assertion that he ran towards the East, has been introduced only in order to assure the identification which is highly improbable. We, therefore, believe that no doubt, Siraj Muhammad was killed in the street and in front of the house and Baithak of Jamil Bacha but it happened in the dark, where no one could identify him. Those who claimed to have had identified the assailant in the circumstances, were obviously not present on the spot. The assailant seems to have been charged on the basis of motive.
11. Though not argued, yet we inculcate another doubt that all the four companions were not together and had never gone to the Baithak of Jamil Bacha. From the narration of the F.I.R., it appears that they were inside the Baithak, wherefrom they decided to go home and thus stepped out to land in the street/thoroughfare. On the other hand, the evidence would suggest that they had not entered the Baithak at all. They had rung the bell but neither Jamil Bacha nor his son answered the call. If none had answered, there was no sense in entering the Baithak. The whole story seems to have been introduced in order to show their presence on the spot. This story appears not to have been supported by Jamil Bacha and his son and that is why both of them have been abandoned. We have no doubt in our mind that the witnesses were not present on the spot and the assailant had taken all the benefit of darkness in killing the deceased who happened to be alone.
12. A controversial and doubtful situation is created by post-mortem report which seems not to be supporting the prosecution version. P.W. Amjad Ali has stated in his cross-examination that prior to their so-called coming to the Baithak of Jamil Bacha, they had taken tea in the house of the deceased, where they had gathered at sunset time. 'Therefrom, as narrated by the witness, two of them went to offer 'Maghrib' prayers in the nearby mosque and then came to the house/Baithak of Jamil Bacha. It means that they had not taken evening meals till the time of occurrence but the post-mortem report shows that the stomach of the deceased contained semi-solid food. The only conclusion which we can logically draw is, that the deceased had taken evening meals which takes about two hours in getting into semi-solid form. He, therefore, seems to have been killed about two hours after the evening meals. This renders the time of occurrence to be highly doubtful, as disclosed in the F.I.R. And so the presence of the witnesses.
13. Coming to the question of recovery of kalashnikov, it is admitted by the witness concerned, that he had arrested the accused/proclaimed offender from the house of Yar Wali, against whom he had registered a case of harbouring as well. In the circumstances in which he raided the house of Yar Wali, it was incumbent upon him to have had complied with the provisions of section 103, Cr.P.C.
Which he did not and which, therefore, renders the recovery as doubtful. The second doubtful aspect is to the effect, that such arrest and recovery had been effected four and a half years after the occurrence but still it is surprising that the accused-appellant had been carrying the same rifle that matched with the empties despite the fact that no description of rifle was ever given by the complainant in the F.I.R. Though, as claimed, the assailant was fully identified and had been unwise enough to further rush towards the source of light in the process of decamping.
14. The empties were kept with the Investigating Agency for more than four and a half years and were never sent to the Expert until the so-called recovery of the rifle. The empties could have been sent to the Expert in order to ascertain as to whether those were fired from single weapon or more.
The keeping of empties for such a long period of four and a half years is highly objectionable and renders the matching thereof with the rifle as highly doubtful.
15. We are left with the question of abscondence alone. As discussed earlier, we are absolutely sure in our mind about the fact that the eye-witnesses were not present on the spot and there are certain striking improbabilities which indicate that the occurrence had taken place much later than the time disclosed in the F.I.R., this by itself, is more than sufficient to dislodge the case of the prosecution and hence it cannot seek support from the factum of abscondence. In other words, in the absence of any material evidence against the accused, the abscondence alone cannot lead to conviction.
16. Learned counsel for the complainant had no reasons to answer so many discrepancies in the case of the prosecution, especially qua the presence of the eye-witnesses. The only argument advanced was, that regarding any question of doubt, there came no suggestion from the side of the accused. We think that the questions of making unnecessary suggestions are not at all relevant because the very purpose of cross-examination is bringing about the discrepancies, which the defence has done successfully.
17. As a sequal to our above discussion, both Criminal Appeals Nos. 22 of 1998 and 21 of 1998, are accepted and appellant Faqirullah is hereby acquitted of the charges under section 302, P.P.C. And 13, Arms Ordinance. The convictions recorded and the sentence imposed by the learned Sessions Judge, Swabi vides his judgment dated 20-12-1997, are hereby set aside. The appellant, if not required to be detained in any other cause, is directed to be released forthwith.