' MALIK HAMID SAEED, J.--- Ahmad A1i, appellant, along with his co-accused Rahamdad and Zamosh stood charged for committing the murder of Zainul Zahideen and unsuccessful attempt at the lives of Abdul Munaf, Mst. Aqal Meena, Mst.. Jamila and Islahuddin, P. Ws, They were, therefore, tried in the Court of learned Additional Sessions Judge/Izafi Zilla Qazi-I, Swat for such offences. The learned trial Judge vide impugned judgment, dated 18-9-2002 found Ahmad Ali, appellant, guilty of the charge under section 302, P.P.C. And sentenced him to 25 years' R.I. With a fine of Rs,50,000 to be paid as compensation to the legal heirs of the deceased or in default to further undergo 6 months' S.I. The appellant and his co-accused Rahamdad were also found guilty of the charge under section 307, P.P.C. And were convicted and sentenced to two years' R.I. Each. The benefit of section 382-B, Cr.P.C. Was extended. The other co-accused namely Zamosh, however, was acquitted of the charge.
2. Appeal against the aforesaid judgment was initially moved by the appellant Ahmad Ali through Qazi Zaki-ud-Din, Advocate, but later on the appellant also sent another appeal against the same judgment from jail, therefore Qazi Zaki-ud-Din, Advocate, withdrew his power of attorney on behalf of the appellant and Mr. Abdul Fayyaz Khan, Advocate was engaged from the panel of pauper counsel on behalf of the appellant.
3. The prosecution case, in brief, is to the effect that on 17-7-1992 at 8-30 a.m. Abdul Munaf, complainant, reported the matter to I.H.C. Shah Dherai Police Choki that on the preceding night he along with his son Zainul Abideen and other family members were sleeping in their house whereas his other son Zainul Zahideen was sleeping in the nearby "Dhaira" when at about 21-30 hours firing started at their house. He along with his family members awoke on such firing and saw in the moon light that his brother Ahmad Ali with accused Rahamdad and Per.1-1 Zarnosh, residents of Shah Dherai, duly armed with "Topaks" were making firing at their house. During the course of firing his son Zainul Zahideen ran from the "Dhaira" towards his house but in front of the house he sustained fire-arm injury at the hands of Ahmad Ali and died on the spot. He and his other family members, however, escaped unhurt. The accused decamped from the spot after the occurrence. Domestic bad relations between the complainant and accused Ahmad Ali since long was described as motive for the commission of the offence. Zainul Abideen and other inmates of the house were stated to have witnessed besides the complainant. Delay in lodging the report was explained as hilly area and fear of accused.
4. The report of the complainant was recorded in the shape of a Murasila and was sent to Police Station Kabal for registration of the case against the accused. The said I.H.C. Qasim Jan, thereafter, visited the spot and prepared the site plan Exh.P.W.11/1 at the instance and pointation of the complainant and other eye-witnesses. He also took into possession one empty of .303 bore from the spot vide recovery memo. Exh.P.W.6/5 in presence of marginal witnesses. The legal heirs of the deceased did not want post-mortem examination of the deceased; therefore, he handed over the dead body to them after obtaining an "Iqrar Nama"; Exh.P.W.6/4. Vide recovery memo. Exh.P.W.6/1 he took into possession the blood-stained Shalwar of the deceased. Vide another recovery memo.
Exh.P.W.6/2, he took into his possession blood-stained earth from the place of the deceased in presence of marginal witnesses. On arrival of the S.H.O. At the spot, he handed over the remaining investigation of the case to him.
5. Jehangir Khan, S.H.O. (P.W.9) on his turn searched the houses of the accused, but neither the accused were available nor any other incriminating article could be recovered. On arrest of Rahamdad and Zarnosh, accused, this P.W. Obtained their four days custody, in which accused Rahamdad confessed his guilt and on his pointation on 22-71992 a rifle "Ghwageen" English made, stated to be the crime weapon, was recovered from the house of the father of accused Rahamdad.
Similarly, another rifle "Yakbanday" was also recovered from the said house. He recorded the statements of the marginal witnesses. On 23-71992, accused Rahamdad and Zarnosh were produced before the Magistrate, where accused Rahamdad recorded his confessional statement and both the accused were then sent to the judicial lock-up. The crime rifle along with empty recovered from the spot was sent to F.S.L. For opinion. He then submitted complete challan against accused Rahamdad and Zarnosh whereas challan under section 512, Cr.P.C. Was submitted against the absconding accused Ahmad Ali.
6. Dr. Fazalullah (P.W.7) on 17-7-1992 at 10-30 a.m. Externally examined the dead body of the deceased at the house of the complainant and found a circular wound of entry situated at the front of the chest at left side. The exit wound of such injury was located at the back of the chest on right side. According to the doctor the injury was caused through fire-arm rifle.
7. The prosecution in support of its case produced as many as 13 witnesses in support of its case.
Statements of the accused under section 342, Cr.P.C. Were also recorded wherein they professed innocence. The prosecution rested its case on the eye-witness account furnished by Abdul Munaf (P.W.1), Mst. Aqal Meena (P.W.2), Mst. Jamila (P.W.3), Ilsahuddin (P.W.4), the medical evidence, recoveries made from the spot, motive and abscondence of the accused. The learned trial Judge vide impugned judgment found the accused/appellant guilty of the charge under sections 302 and 307, P.P.C. And accordingly convicted and sentenced him as stated in the first para. Of this judgment.
8. We have heard arguments of the learned counsel for the .Parties and have also gone through the record of the case very minutely.
9. Before discussing the merits of the case in the light of the arguments of the learned counsel for the parties, we deem it proper to give a short description of the location of the spot as indicated in the site plan Exh.P.W.11/1. The house of the complainant consists of three portions i,e, residential, "Ghojal" and "Bhaitak" lying side by side and separated through boundary walls in between. "Ghojal" is located between the residential house and "Bhaitak". The "Ghojal" is having an entrance door from the thoroughfare but the residential house and "Bhaitak" are having no boundary walls or entrance doors. When firing started, the complainant Abdul Munaf along with his wife Mst. Aqal Meena was resting inside the residential room shown as "B" in the site plan, wherefrom they came to the courtyard at points Nos.2 and 3 and saw the accused in the moonlit night. Similarly, in the residential room shown as "C" in the site plan, the son of the complainant Zainul Abideen and his wife Mst. Hussan Pari were sleeping and came out to the Verandah at points Nos.4 and 5 and witnessed the occurrence. At points Nos.6 and 7 P.Ws. Islahuddin and Mst. Jamila were present in the Verandah and on hearing the report of fire shots woke up and saw the occurrence. Point "A" in the site plan is room of the "Bhaitak" where the deceased Zainul Zahideen was present and on hearing the report of fire shots he rushed towards his house but near the door of the "Ghojal" at point No,1, he fell prey to the fire shot of Ahmad Ali, accused. The presence of the accused is shown as points Nos.8, 9 and 10, which are located in the fields at a distance of about 40 to 51 paces from the respective places of the eye-witnesses and the deceased. The occurrence took place at about 9-30 p.m. In the night in the month of July and according to the eye-witnesses they saw and correctly identified the accused in the clearest moonlit night, as at the relevant time the moon was of 15/16th nights lightening.
10. Mr. Abdul Fayyaz Khan, Advocate appearing for the appellant firstly contended it vehemently that identification of the assailants in the moonlit night from a distance of 40/50 paces was not at all possible; and secondly argued that the eye-witness account in this case is not worth reliance, having in it material contradictions and inconsistency on material aspects of the case. The learned counsel for the complainant and the State on the other hand opposed the arguments of the learned counsel for the appellant and stated that in the clearest moonlit night, identity of the accused from such a distance could not be questioned, being known to each others and that the eye-witness account is trustworthy, reliable and gets support from the medical as well as other circumstantial evidence on record.
11. The arguments of the learned counsel for the appellant in the circumstances of the case are forceful. The distance between the assailants and the eye-witnesses at the time of firing is stated to be 43 paces to 51 paces. According to Medical Jurisprudence and Toxicology by Modi, 1963 Edn. p.60 identity of a person from 12 yards and above becomes impossible even in clearest moonlight and only the stature or outline of the figure alone could be seen as a means of identification. If the distance between the eye-witnesses and the accused is taken as 40 paces, even then if converted to yards, the distances would become more than 12 yards. The superior Courts of this country have already doubted the identity of an accused in such-like situation. In the case of Muzaffar v. The State reported in PLJ 1975 Cr.C. (Lah.) 244, the Honourable Lahore High Court has held that, "identification of accused in a murder case impossible from a distance of 70 feet even in clearest moon light" Again the Honourable Judges of the Lahore High Court have held in the case of Anara v. The State 1988 M LD 237 as under:-- "Ocular evidence by witnesses claiming to have identified accused in a moonlit night from a distance of 10/12 Karams (20/25 yards) - not reliable as identification in such circumstances would be practically impossible."
' It is also held in 1968 PCr.LJ 1077, that identification of a person by moonlight even at shorter distance is practically impossible. In this case too, the distance between the accused and the alleged eye-witnesses is of such a nature wherefrom the correct identification of the accused becomes very difficult, what to say about singling out of a particular accused for the fatal shot out of the three accused, standing side by side at the time of firing. The accused/appellant in the circumstances is entitled to the extension of such doubt arising in the prosecution case.
12. Coming to the eye-witnesses account, we may say that the same is also discrepant and contradictory. The complainant (P.W.1) in his statement has stated that there is a door to the "Ghojal" from the residential portion also, but the other witnesses have contradicted him by saying that there was no door opening to the "Ghojal" from the side of the residential portion. The complainant has further stated that the police at home recorded his report, but on the other hand the case of the prosecution is that the report of the complainant was recorded in the "Chowki". P.W .2 Mst. Aqal Meena has stated that at the time of firing Mst. Jamila (P.W.) was inside the room, but P.W.4 Islahuddin has stated that he and Mst. Jamila, his sister, both were sleeping in the Verandah at the time of firing. As against this, Mst. Jamila has stated in her statement that she along with her minor nephews was sleeping in the Verandah whereas his brother Islahuddin was sleeping inside the room. Hence all the P.Ws. Have contradicted each others on this point. P.W.3 Mst. Jamila in her examination-in-chief has stated that when his brother Zainul Zahideen ran towards his house, he was hit near the "Ghojal" from the firing of Ahmad Ali. She has, however, admitted in her cross- examination that where she was sleeping therefrom the door of the "Ghojal" was not visible.
According to the site plan the deceased died in front of the door of the "Ghojal" outside the path, hence it cannot be said that this P.W. Would have certainly seen the deceased at the time of receipt of fire-arm injury at the hands of accused/appellant. It is in the statement of Mst. Aqal Meena (P.W.2) that from the courtyard of his house, the "URDU TEXT" is visible. According to the site plan, the "Ghojal" consists of two parts, one meant for keeping animal and the other was vacant.
The deceased received injuries in front of the vacant "Ghojal". If on one hand Mst. Jamila P.W. Has stated that where she was sleeping therefrom the door of the "Ghojal" was not visible, on the other P.W. Islahuddin too has stated that where he was present therefrom only the door of the "Bhaitak" was visible to him. It means that even the door of the "Ghojal" was not visible to this witness also as to see the act of receipt of injury by the deceased. Similarly, P.Ws.1, 2 and 3 in their statements have stated that the firing was made from those cartridges, which after explosion gives light, but P.W.4 has stated that firing was made from ordinary cartridges and the same were not giving light. All these contradictions are not minor in nature but are very important and material, making the case of the prosecution as doubtful at least to the extent of firing the fatal shot by Ahmad Ali, appellant.
The delay of 11 hours in reporting the matter to the police in these circumstances becomes questionable, when distance between the Police Chowki and the spot is 7/8 kilometers and according to all the eyewitnesses the complainant departed for lodging the report at morning Azan Vela.
13. The circumstantial evidence also does not corroborate the story put forward by the eye- witnesses. According to the eye-witnesses, in all about 40/50 shots were fired by the accused, but only one empty of .303 bore rifle was recovered from the spot. The crime weapon allegedly recovered at the instance and pointation of co-accused Rahamdad, when was sent along with the empty recovered from the spot to the Laboratory, the report of the Expert came in the negative, meaning thereby that which rifle was attributed to accused Ahmad Ali, the empty recovered from the spot was not fired from that.
14. It also does not appeal to a common sense that when all the eyewitnesses were standing quite near to each others at a place wherefrom the accused were visible to them, how they escaped unhurt from such huge firing and instead the deceased Zainul Zahideen became prey to the shot of accused/appellant Ahmad Ali, who at the relevant time was in running condition from the "Bhaitak" to the house.
15. The complainant and accused/appellant Ahmad Ali are stepbrothers. Though the complainant has stated that there was between him and accused Ahmad Ali over agricultural property, but the prosecution has not established such motive through any independent or documentary evidence.
Even otherwise, motive is a double-edged weapon which cuts both the sides and in the circumstances of this case, the charge against accused/appellant Ahmad Ali seems to be the result of mala fide intention of the complainant.
16. Mere abscondence per se is not sufficient for establishing the guilt of an accused person unless the prosecution is able to establish its case through unimpeachable nature of evidence, which is lacking in this case.
17. For the aforesaid reasons, we are of the view that the prosecution has failed to establish its case against the accused/ appellant beyond any shadow of reasonable doubt and the accused/ appellant in the circumstances is entitled to be acquitted of the charge. Accordingly, this appeal is accepted, the impugned judgment and conviction of the appellant is set aside and he is acquitted of the charge. He shall be released from jail forthwith, if not required in any other case. .