' IJAZ-UL-HASSAN, J.--- Appellant Mir Mat Khan alias Matokai (60) son of Gul Mat Khan, resident of Halala Banda, District Karak, through Criminal Appeal No,261 of 1999 has assailed the judgment, dated 19-8-1999 passed by the learned Judge Special Court, Karak, whereby the appellant was convicted under section 302, P.P.C. And sentenced to imprisonment for life in addition to a fine of Rs,1,00,000, half of which, on realization, was directed to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. In case of default in payment of fine, the appellant was to suffer imprisonment for five years. The appellant was, however, acquitted of the charge under section 324, P.P.C. Benefit of section 382-B, Cr.P.C. Was also extended to hint
2. The appellant is accused of having, on 12-5-1995 in the lands Mosooma Boray in the precincts of Police Station Teri, at about 7-30 a.m. Alongwith his absconding co-accused Pir Bat Khan, Noora Toon and Sultan, duly armed and in furtherance of their common intention, committed murder of Lal Shah Gul deceased and attempted murder of Khial Shah Gul complainant and Nishad Gul P. Ws.
3. The crime in question having taken place on the date, time and the scene of occurrence mentioned above, the report Exh.P.A. About it was lodged the same day at 8-20 a.m. At Police Station Teri distant 7/8 kilometres from the spot, at the instance of Khial Shah Gul complainant and it was recorded by S.-I. Zar Jamal Khan (P.W.9), the then S.H.O. Police Station Teri.
4. The prosecution story in brief is that on the day of occurrence .The complainant accompanied by his brothers Lai Shah Gul deceased and Nishad Gul P.W. Was on his way to the Daira of his co- villagers Malik Qamar Gul, a notable of the area for offering Eid greetings. The deceased was a little ahead of the complainant. When they reached the fields known "Boray" in the limits of Halala Banda Karak, the appellant and absconding co-accused Pir Bat Khan, Noora Toon and Sultan duly armed with kalashnikovs emerged there and started firing at the deceased, as a result of which the deceased was hit on different parts of his body. The victim fell on the ground and died at the spot.
When the complainant and his brother tried to approach near the dead body, they were also fired upon by the accused-appellant but the complainant and his brother escaped unhurt. After having accomplished the mission the accused left towards their houses. The complainant and his brother P.W. Nishad Gul witnessed the occurrence. Existence of previous enmity between the two families was stated to be the motive behind the occurrence culminating into the murder of Lai Shah Gul deceased.
5. S.-I. Zar Jamal Khan (P.W.9) who was then S.H.O. Police Station Teri registered the case vide F.I.R.
(Exh.P.A.) on the report of the complainant. He prepared inquest report and injury sheet, Exh.P.M./2 and Exh.P.M./3 respectively, of the deceased and dispatched the dead body to Civil Hospital, Teri for post-mortem examination under the care of constable Zahidullah P.W.6. He then proceeded to the spot and on reaching there at about 9-15 a.m. Prepared the site plan (Exh.P.B.) at the instance of complainant and eye-witness. Vide memo. Exh.P.W.5/1 he took into possession blood-stained earth from the spot in presence of marginal witnesses. He also vide recovery memo. (Exh. P . W.5/2) took into possession 12 empties of 7.62 bore (P.1) from the place indicated in site plan of accused Mir Mat, 10 empties of the same bore (P.2) from the place of Mir Bat Khan, one empty of kalashnikov (P.3) from the place of Toora Toon and two empties of the same bore (P.4) from the place of accused Sultan. The last-worn clothes of the deceased (P.1) and one Chader (P.6) all stained with blood and having corresponding cut marks brought by constable Zahidullah P.W. From the hospital were taken into possession vide recovery memo. Exh.P.W.5/1. Blood-stained clothes and earth were sent to Chemical Examiner for opinion and report. As the accused were absconding, warrants under section 204, Cr.P.C. And proclamation notice under section 87, Cr.P.C. Were obtained vide applications Exh.P.W.9/2 and Exh.P.W.9/3. After recording statements of P.Ws. Complete challan was submitted on 9-6-1995.
6. Dr. Muhammad Ayaz (P.W.4) the then Medical Officer, Civil Hospital, Teri on. 12-5-1995 at 9-00 a.m. Conducted post-mortem examination of the deceased and noted the following on external examination:
(1) An inlet wound 7 nun x 7 mm in diameter in front of the left ear.
(2) Outlet wound taking with it the right mendible and upper part of neck.
(3) Inlet wound at the left angle of mouth 6 mm x 6 mm.
(4) A big outlet wound on the back of scalp left side 3" x 4".
(5) An inlet wound 7 mm x 7 mm in diameter below the middle of right clavicle, charring marks positive.
(6) An outlet wound at the middle of medial border of right scapula.
(7) An inlet wound 6 mm x 6 mm at the lower end of right border of sternum.
(8) An outlet wound at the anferior angle of right scapula.
(9) An inlet wound 6 mm x 6 mm diameter at the 11th intercastle scape 3.5" right to the mid line on the front.
(10) An outlet wound at the first lumber vertebra on the back.
(11) An inlet wound at the route of neck 7 mm x 7 mm in diameter.
(12) An outlet wound on the back of chest at the 7th cervical spine.
(13) 2 inlet wounds on the dorsum of penis.
(14) 2 outlet wounds on the ventral surface of penis.
(15) 2 inlet wounds on the back 7 mm x 7 mm in diameter at the pubic region.
(16) .2 inlet wounds at the centre of right gluteous.
(17) 4 inlet wounds at the right iliac fossa.
(18) 4 outlet wounds at the back of right renal area.
(19) An entry wound at the medial side of right thigh.
(20) An outlet wound at the back of right leg 6" x 7".
(21) An inlet wound at the medial side of right knee.
(22) an outlet wound at the lateral side of right knee.
(23) An inlet wound at the lateral side of left buttock.
(24) An outlet wound at the gluteal fold left.
Internal Cranium. Skull bone fractured, brain destroyed.
Thorax (1) Walls ribs, cartrilages perforated. (2) Pleurae perforated. (3) Larynx and trachea perforated. (4) Right lung perforated. (5) Left lung intact. (6) Peritoneum and heart intact and (7)
Blood vessels damaged.
Abdomen. Walls, peritoneum, perforated, mouth and pharynx destroyed, diaphram perforated, stomach perforated empty, panchrea intact. Small intestine perforated empty, large intestine perforated empty, liver perforated, kidneys. Right kidney damaged, bladder damaged, organs of gestation perforated.
Remarks. The deceased was found to have died due to fire-arm injuries causing damage to the vital organs. Probable time between injury and death was found instantaneous and between death and post-mortem examination 1 to 2 hours.
7. The prosecution in order to prove its case examined as many as nine witnesses. After conclusion of evidence statement of accused was recorded under section 342, Cr.P.C. Wherein he denied having had any hand in the commission of crime and claimed to have been falsely charged due to previous enmity. He led no evidence in defence. The learned trial Judge upon consideration of the evidence convicted and sentenced the accused-appellant, as noted above.
8. Mr. Khalid Khan, Advocate for the appellant in the first instance argued that the impugned judgment of conviction and sentence being contrary to facts and law is liable to be set aside as the learned trial Court has failed to evaluate and assess the evidence on record in its true perspective. The learned counsel submitted that the claim of Khial Shah Gul complainant and his brother Nishad Gul P.W. Having accompanied the deceased at relevant time and having seen the occurrence stands belied by host of circumstances and no amount of corroboration can rehabilitate it. He also contended that during the days of occurrence the appellant was not present in his village and on learning of the charge he voluntarily surrendered before the police and even otherwise abscondence alone is not sufficient to form basis for conviction of an accused person.
Additionally, the learned counsel reiterated that medical evidence, relating to motive, recoveries and abscondence does not support the prosecution allegations and despite availability of independent evidence, same has been withheld which has created dent in the prosecution case. In support of the contentions, reliance was placed on laved Sheikh v. The State 1985 SCM R 153, Javed Iqbal v. The State 1998 SCM R 1539, Tariq Parvez v. The State 1995 SCM R 1345 and State v. Iftikhar 2002 M LD 347.
9. Mr. Malik Ahmad Jan, learned State Counsel, on the other hand, in an endeavour to defend the impugned judgment maintained that the appellant has been nominated as one of the accused persons for commission of crime in the report lodged with promptitude; that two eyewitnesses namely complainant and his brother have given a consistent and straightforward account of the occurrence which has remained unshaken in cross-examination that medical evidence fully supports the charge; that recoveries from the spot lend strength to the prosecution case; that motive has been fully established and that noticeable abscondence of the appellant is a pointer towards his guilt. Mr. Lal Jan Khattak, Advocate for the complainant adopted the arguments addressed by learned counsel for the State. To augment the contentions,, reliance was placed on Nasir Khan v. The State 2000 SCM R 130, Haq Nawaz and others v. The State and others 2000 SCM R 785, Taj Ali Khan v. The State 1999 SCM R 2444 and/ Muhammad Ilyas and others v. The State 2000 NLR 340.
10. It is a known and settled principle of law that prosecution primarily is bound to establish guilt against the accused without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence enabling the Court to draw conclusion whether the prosecution had succeeded in establishing accusation against the accused or otherwise and if it comes to the conclusion that the charges so imputed against the accused had not been proved beyond reasonable doubt then the accused becomes entitled for his release on getting benefit of doubt in the prosecution case.
11. The mainstay of the prosecution case is the ocular account of the incident furnished by complainant Khial Shah Gul and Nishad Gul P.Ws.
12. The complainant supported the prosecution version and stated that on the day .Of occurrence i,e, third day of Eidul Azha he (complainant) accompanied by his brothers Lal Shah Gul (deceased) and Nishad Gul P.W. Was on his way to the Daira of Malik Ahmad Gul an elder of the village to offer Eid greetings and when they reached the fields known as Boray the appellant and absconding co- accused appeared there and resorted to firing at the deceased with their kalashnikovs as a result of which the deceased was hit, fell on the ground and died at the spot. The firing continued for about 4/5 minutes. When the complainant and his brother tried to go near the dead body, the accused also fired on them but they escaped unhurt. In the meanwhile, inhabitants of the village attracted to the spot. The dead body was taken to the police station where report Exh.P.A. Was lodged. Explaining the motive it was stated that Lal Bat Khan brother of Mir Mat accused was murdered for which Lal Shah Gul deceased was charged. It is in his cross-examination that the place of occurrence may be at a distance of 50/60 paces away from the house of Malik Qamar Gul and other villagers were also coming and going for Eid greetings at the relevant time. 'At the time of occurrence the village people were busy in their fields and they were attracted to the spot on hearing the report of fire shots. Being a daylight occurrence the whole village people had seen the occurrence.
13. Nishad Gul P.W. Supported the complainant and stated in his cross-examination that he is residing in tribal territory at a distance which can be covered by vehicle within two and a half hour.
Due to enmity he had shifted his abode to tribal territory. The accused continued firing for about 10 minutes at the deceased. When the village people came to the spot they took the dead body to their house and kept the dead body there for about ten minutes. About fifty persons had gathered in their house when the dead body was brought to the house but they were not appraised of the incident.
14. Having considered the contentions of learned counsel for the parties in the light of the material on file we are convinced that the claim of complainant Khial Shah Gul and Nishad Gul P.Ws. Having seen the occurrence, stands belied by a host of circumstances and they were not present at the spot at relevant time and had not seen the occurrence. Had they been present they might not have been spared in order to create evidence. The appellant seems to have been charged on suspicion which cannot take the place of the legal proof. The eye-witnesses are not only closely related to the deceased and inimically disposed towards appellant but are chance witnesses. It is difficult to believe that four assailants duly armed with kalashnikovs resort to indiscriminate firing from a close range and the firing continues for 4/5 minutes but only one of the members of the complainant party a little ahead of his companions namely Khial Shah Gul and Nishad Gul P.Ws. Is hit fatally but the remaining sustain no injury and escape unhurt and they also survive during the second round of firing on them when they are stated to have approached the dead body to remove the same from the spot.
It is undoubtedly true that interested evidence is not necessarily unreliable evidence and relationship, by itself, is not a valid ground for rejecting sworn testimony, nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction but it is equally true that in cases where the rival parties are found to have deep-rooted enmity and they have reasons for false implication the Court insists for independent corroboration. In the instant case no such corroboration is available. A specific motive has been attributed to the appellant but the prosecution has not been able to establish the same, Motive is double-edged weapon. It cuts both the ways. So far as the abscondence is concerned, it is not denied that abscondence alone cannot E be a substitute for real evidence because people do abscond though falsely charged in order to save themselves from agony of protracted trial. In the instant case abscondence is meaningless because it can neither remove the defects of the oral evidence nor is by itself sufficient F to bring guilt home to the accused-respondent as held by this Court State v. Iftikhar 2002 M LD 347 (Peshawar).
15. In view of the above it is not safe to rely on the statements of P.Ws. Khial Shah Gul and Nishad Gul unless they are corroborated by any other material evidence. Even otherwise both the eye- witnesses are admittedly related and inimical towards the appellant, hence they are not sufficient to be relied upon for conviction of the appellant. The prosecution has failed to prove the case against appellant in the given circumstances of the case. Statements of both the eye-witnesses are not reliable being inimical towards the appellant. Resultantly we allow the appeal and set aside the conviction and sentence passed against him. The appellant shall stand acquitted in the case.
He is directed to be released forthwith from jail if not required in any other case. The observations made above relate to the appellant and shall have no bearing on the case of the absconding co- accused.