' SARDAR MUHAMMAD RAZA KHAN, CJ.---Khaista Bola son of Saadullah resident of Village Gander Shah Raqba Haroshah Malakand, while lodging a report subsequently registered at serial No,1 at Police Station Qaidabad, on 9-2-1987 at 0900 hours stated that his brother Habibullah at 0800 hours had come down to the road from his home and was standing, by the read side when in the meanwhile accused Rehanuddin son of tajuddin resident of Village Gander Shah Raqba Haroshah Malakand appeared on the scene armed with single barrel shotgun. The latter altercated with Habibullah and opened fire from his shotgun with which Habibullah got hit at the right armpit and was seriously injured. Khaista Bola complainant was taking the injured to the Hospital when on the way thereto he died. The occurrence was witnessed by one Zairullah and another Saadullah. The motive is alleged to be some altercation between the accused and the deceased on the night preceding the occurrence.
2. The Investigating Officer reached the spot, prepared the injury sheet and inquest report of the deceased whose dead body was lying in the house, prepared the site-plan and recovered some blood-stained earth from the spot. No post-mortem was conducted because the legal heirs had declined permission. The accused-appellant had decamped from the spot and hence, the Investigating Officer raided his house where he was not found but at a distance of about three hundred/three hundred and fifty yards from the house of the accused the Investigating Officer recovered from a sugarcane a single barrel breach-load .12 bore shotgun alongwith bandolier and 5 SG cartridges of .12 bore alongwith an empty of the same calibre. All these articles were alleged to be the ownership of the accused-appellant.
3. The accused-appellant Rehanuddin remained absconder for about eight and a half years till his arrest on 2-10-1995. During trial the aforesaid complainant as well as the witnesses were examined by the prosecution as eye-witnesses seeking support from the said recoveries and the prolonged abscondence of the accused-appellant besides the motive. On such evidence and in the attending circumstances the learned Additional Sessions Judge/Izafi Zilla Qazi Malakand Camp Dargai, vide his judgment dated 22-3-1997, convicted the appellant under section 302, P.P.C. And sentenced him to imprisonment for life in addition to a sum of Rupees one lac to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. He was extended the benefit under section 382-B, Cr.P.C. The appellant has come up in appeal.
4. The first witness that requires to be discussed is Habib Said (P.W. 2) in whose presence the Investigating Officer had recovered blood-stained pebbles from the spot. He belongs to a Village named Zormandi which is at a distance of one and a half miles from the spot. He had come to the spot on foot after receiving information about the murder, According to his, categoric admission, the Investigating Officer had recovered blood stained pebbles from the spot at about 8.00/8.3 am.
If the time of lodging the F.I.R that of the Investigating Officer coming to the spot and also that of the witness from his village, is excluded then one can safely conclude that the occurrence might at least have had taken place three hours prim to such recovery and hence, it can be stretched to have taken at 0500/0530 hours which in month of February is a time when a is pitch dark.
5. The complainant, therefore, seems to have suppressed the actual time of occurrence which was certainly in the dark hours of the morning. What the deceased has been doing on the roadside at such time can be anybody's guess. It is in the evidence that he has been waiting for the Bus.
Whether it was a time for the Bus, again remains a matter of anybody's guess. From this unavoidable circumstance we have no doubt in our mind that the occurrence had taken place in the pitch dark hours of the morning and there was no sense for the deceased to be present there and, all the more, for the witnesses to be around. We believe from the statement of only one witness of the prosecution that the occurrence was unseen.
6. Another intriguing circumstance is to the effect that during trial the parcel of the clothes of the deceased was opened with surprising revelation. The shirt of the deceased was torn but when the pieces thereof were joined together, no signs of bullet or pellet marks were found on the right side of the shirt below or near the armpit. It is interesting to note that such marks were found on the sweater of the deceased. If everything is true as above, it means that the deceased, wherever and whenever killed, was not wearing the shirt. If he was not wearing the shirt, there is no sense in wearing the sweater while on the roadside and waiting for the Bus. It clearly means that the hole/cut marks on the sweater were caused by the prosecution itself. We are seriously doubtful, in the circumstances, about the place as well as the manner of occurrence. This also lends support to our doubt that the occurrence had taken place in a manner and situation where the witnesses were not present.
7. The prosecution seeks support also from the recovery of the shotgun, bandolier and the cartridges from sugarcane field attributed to the accused-appellant. We reject this recovery downright because not less than stupid would be an assailant who having killed a person and having succeeded in running from the sport immediately would throw the fire-arm in the field particularly when there was none to chase him either, Rather, if he feels that he is chased by someone, he would never commit the folly of parting with his fire-arm which he would certainly need to defend himself. This recovery is also useless because the report of the Ballistic Expert in this behalf is also in negative.
8. Rustam Ali, a retired Subedar, is one of the two Investigating Officers who appeared as P.W.5. It was a shock of-our judicial experience that Rustam Ali as well as the second Investigating Officer named Rehmat Shah were totally illiterate. We are constrained to observe that it is highly irresponsible an act of the authority to place the lives of the people in the hands, of such Investigating Officers who are totally illiterate. No doubt Rustam Ali had prepared the recovery memo. With the help of a Moharrir but how could he know, being illiterate, the contents of all the recovery memos., that he or they managed to sign. We have no choice but to brush aside the entire investigation conducted by these two illiterate officials namely, Rustam Ali and Rehmat Shah.
Resultantly, this becomes a case of no investigation at all.
9. Although the above discussed three factors are sufficient individually as well as collectively to discard the prosecution case in toto, yet it would be proper to discuss about the ocular testimony.
Zairullah, Saadullah and the complainant Khaista Bola claim to be and have appeared as eye- witnesses. Zairullah and Saadullah in their Court statements have totally excluded the presence of Khaista Bola by avoiding to mention his presence. Thus, it is not known as to how Khaistaq Bola complainant could mannage to lodge a report claiming to be an eye-witness. As the witnesses and the complainant had to justify their presence on the spot, they for the first time introduced at trial that everybody was present there waiting for the Bus. This fact is altogether excluded from the F.I.R. And hence, we could find no justification for the witnesses to be present. The reason is an afterthought.
10. Zairullah (P.W.7) admits in his cross-examination that the complainant had left for the Police Station before meeting the two alleged eye-witnesses. It means that on the spot the, so-called witnesses had not at all met the complainant but still the complainant had mentioned them in F.I.R.
To be the eyewitnesses. The F.I.R., therefore, seems to have been lodged after considerable deliberations and concoctions. It also does not appeal to reason that the assailant would chose a time for killing when three persons in addition to the deceased were available on the spot. One suggestion was put to the witness that the deceased was killed in the early hours of the morning when he had come to take bath in the nearby Canal. Though this suggestion is denied by Zairullah P.W. But the truth of suggestion cannot be excluded when we find that the shirt of the deceased.
Bore no hole/cut marks.
11. The next eye-witness is Saadullah. His production as a witness is the most unintelligent and illiterate attempt of the prosecution because this witness when examined by the Magistrate under section 164, Cr.P.C. Had clearly stated that there were two assailants who had killed the deceased and both of them had muffled faces and hence, could not be identified. We could not understand the logic of production of this witness. When a suggestion was put to him that if his father Khairullah was also present on the spot, he expressed his ignorance as to whether he was or was not. This shows his absence on the spot because had he been present, he could at least have answered to the suggestion forthwith and in the negative. He further says that when the injured was being placed in the vehicle, he and Zairullah were present and they placed the injured in the vehicle. Thereby, he excludes the presence of Khaista Bola with an additional admission in the subsequent part of cross-examination that they had met Khaista Bola at noon time and that the police had arrived at the spot prior to their meeting Khaista Bola. The witness denied his knowledge about the presence or otherwise of Khaista Bola on the spot.
12. P.W. Saadullah has put up altogether different version of the occurrence in his statement under section 164, Cr.P.C. Such statement was confronted with the witness but it is not conceivable as to how could he resale therefrom when such statement under section 164, Cr.P.C. Is signed by him in addition to the mention of registration number of his National Identity Card.
13. The next material witness is Rehmat Shah (P.W.11), the second Investigating Officer whose investigation we exclude altogether because of his being an illiterate person.
14. The above detailed discussion and the circumstances would reveal that the occurrence had not taken place in the circumstances in which it was put forth; that the eye-witnesses including the complainant were not present on the spot and the occurrence had taken place somewhere in the dark hours of either the morning or the night. The recovery of fire-arm attributed to the accused- appellant is totally unnatural and the entire investigation is a farce conducted by illiterate persons.
In such circumstances, we are left with the absondence alone. When the case of the prosecution is an utter failure from all aspects discussed above, no conviction can be based on the abscondence alone, however, prolonged it may be. It is a weak type of evidence which can be of a supportive nature alone. Here, it neither supports nor is supported by.
15. Consequently, the appeal is accepted, the conviction and sentence recorded by the learned Additional Sessions Judge/Izafi Zilla Qazi Malakand Camp Dargai, vide his judgment dated 22-3- 1997, are set aside and the appellant Rahanuddin is hereby acquiued of the charge under section 302, P.P.C. If not required to be detained in any other cause, he is directed to be released forthwith.
16. A copy of this judgment be sent to the Secretary Home as well as Commissioner Malakand Division with the directions to avoid placing the lives of people in the hands of illiterate people especially when they are Investigating Officers and that too in a capital charge. This appears to be one of many misfortunes of Malakand Division in the parlance of my and order.