MUHAMMAD QAIM JAN KHAN, J.---The appeal in hand has been filed by Ismail Khan who was convicted and sentenced by Judge Special Court, Bannu vide judgment dated 24-10-1998 under section 302(b), P.P.C. To imprisonment for life and shall also to pay an amount of Rs,30,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. And in case of failure, the same shall be recovered as arrears of land revenue. Benefit of section 382-B, Cr.P.C. Has been given to the accused/appellant.
2. Brief facts of the case are that on 15-11-1994 at 18-30 hours complainant Malik Zaman produced the dead body of his brother Sattar Zaman to the police station and reported to the Police Officer that on that day after 'Digar Prayer's time' his brother Sattar Zaman came out of the house and started towards the fields while the complainant was managing paddy rice and was sitting on top of the roof of the house. In the meanwhile, accused Ismail and Banaras sons of Muhammad Arif Khan of Kotka Azmat Killa duly armed with Kalashnikovs came there. Banaras ordered Ismail to shoot on which Ismail fired 4/5 shots at Sattar Zarnan with which he was hit and fell down on the ground. The accused decamped from the spot after the occurrence and the complainant when came to his brother, he was dead .By that time. Motive for the offence is stated to be altercation between the deceased and the accused some time ago. Accused Banaras Khan was arrested after some time, challan against him was submitted to the trial Court and after completion of the trial on 14-5-1998 he was acquitted by Judge Special Court, Bannu. The present appellant remained absconder for sufficient long time and was arrested by the police after about four years.
Challan was submitted against him to the Court where he was charged to which he did not plead guilty and claimed trial. Trial commenced. The prosecution examined almost ten witnesses. The accused was examined under section 342, Cr.P.C. He pleaded innocence but produced no defence and also did not record his statement under section 340(2), Cr.P.C. After hearing the prosecution and defence, the trial Judge convicted and sentenced the appellant as stated above, hence the instant appeal.
3. Complainant Malik Zaman is also aggrieved of the said judgment of conviction and has filed Criminal Revision No,13 of 1998 for enhancement of the sentences awarded to the convict- appellant from life imprisonment to that of death and adequate increase in the amount of compensation. Since both the matters are the outcome of one and the same judgment of the learned trial Judge, therefore, both are being disposed of by this common judgment.
4. Before coming to a correct conclusion, a gist of the prosecution evidence is very much necessary. In the instant case, Muhammad Iqbal Khan, S.H.O. Submitted complete challan under section 512, Cr.P.C. Against the appellant.
5. P.W. Noor Wali is a recovery witness to memo. Exh.PR, bloodstained shirt Exh.P.I. And Banyan Exh.P2. P.W. Muhammad Roshan, F.C. Had escorted the dead body to the mortuary and after post- mortem examination brought the post-mortem report and garments of the deceased and handed over it to the Investigating Officer. P.W. Ali Abbas, H.C. Is a marginal witness to recovery memo. To Exh.PR/1 and Exh.PR/2 vide which the Investigation Officer had taken into possession some blood- stained earth from the spot and a small quantity of rice on the roof top of the house of the complainant. P.W. Rizwanullah, L.H.C. Had completed the process under sections 204 and 87, Cr.P.C.
Against the accused. P.W. Wahid Ali had identified the dead body of the deceased at the time of post-mortem examination. P.W. Malik Zaman is the complainant and has narrated the same facts as reflected from the F.I.R. P.W. Muhammad Akbar after arrest of the appellant Ismail in a raid by S.H.O., Police Station Saddar, Bannu had submitted supplementary challan against him. P.W. Abdul Kalam, A.S.-I. Had recorded the report of the complainant vide F.I.R. Exh.PA, prepared the inquest report Exh.PM/2 and sent the dead body for post-mortem examination. He also inspected the spot and during spot inspection recovered some blood-stained earth vide memo. Exh.PR/1 and also took into possession small quantity of rice on the roof top of the house of the complainant vide memo.
Exh.PR/2. He has prepared the site plan Exh.PB and recorded statements of P. Ws. He has also taken into possession bloodstained shirt and Bunyan of tile deceased from Muhammad Roshan Constable vide memo. Exh.PR and all the memos. Were correctly signed by him as well as by marginal witnesses. He issued warrant and proclamation notices against the accused and has placed on file the report of Serologist Exh.PX.
6. P.W. Doctor Wali Rahman had conducted autopsy on the dead body of Sattar Zaman (deceased) on 16-11-1994 at 8-10 a.Ni. And found the following:-- "Body clothes and pale, rigor mortis fully developed and P.M. Staining was positive.
INJURIES:
(1) Fire-arm entry wound 1/4" x 1/4" on the back of left side of the chest in the middle of just scapula.
(2) Fire-arm exit wound 1" x 1/2" on the front of throat at the level of Cricoid bone related to wound No, 1.
Cranium and spinal card.--healthy. Thorax.--First left rib and scapula injured. Pleura on the left side was injured. Trachea injured. Left lung injured. Blood vessels injured at the site of injuries. Left carotid artery injured. Abdomen.--Stomach healthy with semi-digested food. Small intestine containing food while the large intestine containing focus.
Muscles, bones andjoints.---First left rib and left scapula fractured. In his opinion, the death of the deceased had occurred due to firearm injuries to vital organs, i,e, left lung, carotid artery on the left side and trachea leading to heavy loss of blood leading to shock, coma and death.
Probable time that elapsed between injuries and death was opined as 10 to 20 minutes while that between death and post-mortem examination 14 to 16 hours.
7. We have heard learned counsel for the parties and with their assistance have gone through the, record and we will discuss each and every aspect of the case separately.
8. Apparently there is a delay of some two hours and twenty-five minutes in lodging the report which has not been plausibly explained by the complainant. It is very strange that the distance between the police station and spot of occurrence is hardly 7/8 kilometers and the dead body of the deceased was brought in a Datsun Pick-up No,PR-724. Nowhere it is explained what the complainant was doing in these two hours and twenty-five minutes when the distance could be covered hardly in twenty minutes. The trial Court has itself admitted that there is a delay of 2 hours and 25 minutes but without any plausible explanation.
9. It is to be noted that there is no recovery of any empty in the present case nor any bullet marks available on the outer wall of the complainant's house which is in the fire-range. Moreover, there are strong allegation by the appellant against the dishonest investigation by the Investigating Officer which needs some corroboration from the statement of the Investigating Officer itself.
Perusal of the site plan shows that taking into possession of the rice has been entered into the site plan afterwards and apparently it is in a different ink. The deceased had been shot at his back, the entry wound is on his back while the exit wound is on the front of throat and this factum still is not clear either from the statement of the complainant or of the doctor. Moreover, the Medical Officer in his cross-examination has clearly admitted that the exit wound of corresponding inlet wound No,1 is slightly below upward which transpires that the assailants to some extent were on the lower level than the deceased. Keeping in view the site plan, the distance between the complainant and the accused/appellant is about 80 paces i,e, approximately 200 feet and it is. Doubtful whether the complainant had heard any Lalkara although the Investigating office has demonstrated the same and stated that the constable who was on roof top had heard his voice.
10. Complainant Malik Zaman the sole eye-witness who appeared as P.W.7. A bare perusal of his statement clearly shows that with regard to the character of the deceased he has admitted some facts as is clear from his cross-examination. The accused was charged in a dacoity case and he has admitted in his cross-examination that he produced his brother in that case to the police voluntarily and in that case compromise was effected and the accused was acquitted. There are also contradictions in the statement of this P.W. As well as in statement of the Investigating Officer with regard to the inmates of the house. According to P.W.7 there were two brothers and four ladies in the house in which the complainant was living and he stated in the cross-examination that the said ladies were examined by the Investigating Officer while the Investigating Officer has stated that he has not examined the ladies. Moreover, it is very strange that the complainant saw from the roof top that his brother was killed by the assailants. He got down with the help of ladder but did not inform the ladies which seems unnatural.
11. Coming to the statement of P.W.9, his attitude in the present case also seems doubtful. For example, the complainant has stated in a very clear and unequivocal terms in the F.I.R. That the deceased was killed by the complainant with Kalashnikov but the Investigating Officer in the injury sheet Exh.PM/1 and inquest report Exh.PM/2 had scribed the same as 'fire-arm' .Moreover, to cover the unexplained delay in lodging the F.I.R. He has shown as 'after Digar Prayer's time while in the inquest report, he has written as 'Digar Qaza Vela' which he cannot explain as to what he has written this but it reflects that it was just to cover the unexplained delay in the F.I.R. It reflects from the evidence available on the record that some preliminary investigation has taken place by the Investigating Officer after which he had recorded the F.I.R. And thus has covered the delay as well as filled up the lacuna in the prosecution case. With regard to motive, it is not established anywhere and even the trial Court admitted that the motive is shrouded in mystery. In brief, the prosecution case is not supported by ocular, medical and circumstantial evidence and is also not supported by the site plan. There are no empties, no bullet marks. There is sufficient distance between the accused and the complainant and there is unexplained delay of 2 hours and 25 minutes in lodging the F.I.R. Although the police station is-at a short distance from the place of occurrence and conveyance was available to the complainant. There are a lot of contradictions between the statement of the complainant and that of the Investigating Officer with regard to some facts of the case and strangely enough, the same evidence has been disbelieved by the trial Court while acquitting accused Banaras Khan but that evidence has been believed against the present appellant.
12. From the statement of the complainant who is the sole witness of the present case, one fact is crystal clear and that is that either he was not present at the time of occurrence or if he was present then he was not telling the truth.
13. Now the only evidence against the accused/appellant is his long abscondence which to some extent he has explained in his statement and that is that he was absconding in another case and when that case was compromised, he surrendered himself to the police in this case.
Moreover,abscondence alone is not a strong ground for sustaining conviction. So as the prosecution case is very weak and full of doubts, the benefit goes to the present appellant and, therefore, we accept this appeal, set aside the conviction and sentence of the appellant and order that he shall be set at liberty forthwith if not wanted in any other case. Consequently, the criminal revision petition filed by the complainant is dismissed.