M. NAEEMULLAH KHAN SHERWANI, J.- The way in which the instant appeal arises in this. The appellants, namely, Gul Kamand Khan, Samiullah Khan, Saadullah Khan son of Khan - Zaman Khan and Muhammad Sher along with Abdul Rehman, Abdul Sattar, Wazir Khan, Saifullah, Muhammad Amir, Shah Alam Khan, Sardar Khan, Muhammad Aslam Khan, Saadullah Khan Son of Khan Muhammad Khan, Alam Sher Khan, Hayatullah Khan, Saifullah, Fateh Khan, Amal -Khan and Allah Dad were tried by a learned Additional Sessions Judge at Mianwali for committing mactation of Sher Bahadur, and murderous assault upon Mushtaq Ahmad, P.W. The learned trial Judge, by virtue of his judgment dated 1.10.2001 found the appellants guilty of the said charge, convicted and sentenced them as under:-
(i) UNDER SECTION 302(b). P.P.C.
Gul Kamand Khan to death with further direction to pay a sum of Rs.1,00,000/- to legal heirs of the deceased by way of compensation as envisaged by the relevant provisions of Section 544-A, Cr.P.C, or in default thereof to undergo simple imprisonment for six months.
(ii) Under Section 324/34, P.P.C.: Muhammad Sher, Samiullah and Saadullah son of Khan Zaman Khan to rigorous imprisonment for ten years each with a i.e of Rs. 10,000/- each or in default thereof to further undergo rigorous imprisonment for one year each.
(iii) Under Section 337-Rii;). P.P.C.: Muhammad Sher to rigorous imprisonment for three years with further direction to pay an amount of Rs.10,000/- as Daman and in default thereof to remain in jail till its payment.
Benefit of Section 382-B, Cr.P.C, was, however, accorded to the appellants.
The said learned Judge by giving benefit of doubt to Abdul Rehman, Abdul Sattar, Wazir Khan, Saifullah, Muhammad Amir, Shah Alam Khan, Sardar Khan, Muhammad Aslam Khan, Saadullah Khan son of Khan Muhammad Khan, Alam Sher Khan, Hayatullah Khan, Saifullah, Fateh Khan, Amal Khan and Allah Dad, acquitted them of the said charge.
2. Murder Reference No. 707 of 2001 seeks confirmation of said sentence of death awarded to Gul Kamand Khan-convict, whereas he as well as his co- convicts, namely, Samiullah Khan, Saadullah Khan son of Khan Zaman Khan and Muhammad Sher, by filing Criminal Appeal No. 1502 of 2001 have called in question convictions and sentences passed against them by the said learned Judge. We propose to dispose of both these matters together through this single judgment.
3. Occurrence of the alleged incident took place on 6.9.1997 at. 10.30 a.m. In the revenue estate of village Chhidru, situate at a distance of eleven kilometers from Police Station Musa Khan, District Mianwali. The matter food reported 'to Muhammad Nazir, SI (P.W.13), by Khan Bahadur, brother of Sher - Bahadur deceased, on the same day at 12.00 noon at the Police Station, who as per his dictation, drew-up F. I.R. (Exh.PN) correctly without any addition or subtraction on his party.
4. Prosecution version as revealed through contents of F.I.R. (Exh.PN) can be summarized like this Khan Bahadur-complainant is an employee of a factory in Karachi and was on leave. 0n the fateful day at about 10.00 a.m., Shah Alam Khan, Sardar Khan, Aslam Khan, armed with Klashinkovs, Saadullah Khan son of Khan Muhammad Khan, Muhammad Amir, Wazir Khan, Abdul Rehman, Allah Dad, carrying Semi rifles, Alam Sher Khan, armed with 7-MM rifle, and Fateh Khan with 12-bore single barrel gun, indulged into reckless firing at the Dera of Jahangir Khan, a close relatives of the complainant side. On hearing report of firing, complainant along with Sher Bahadur, Khalas Khan, brothers, and Mushtaq Khan left for the Dera of Jahangir, to help him and others out of the situation. At about 10.30, when they reached near house of Muhammad Zaman, then they noticed the presence of Gul Kamand Khan, while carrying Semi-rifle, Muhammad Sher, Shah Alam Khan, Najeebullah Khan, Samiullah Khan, Saadullah Khan son of Khan Zaman Khan and Amal Khan, armed with Klashinkovs, who abruptly came in front of them. Muhammad Sher raised a lalkara to the effect that today they will go after handing over his car. The lalkara was immediately followed by a shot fired through the Semi-rifle made by Gul Kamand Khan, which struck back side of left shoulder of Sher Bahadur, corresponding exit wound was produced on the other side. Second shot was made by Muhammad Sher with his Klashinkov at Mushtaq Ahmad, which hit him on his left flank, It was also and through a through injury. Both the injured fell prone. Najeebullah Khan, Samiullah Khan, Saadullah Khan and Amal Khan fired recklessly through their Klashinkovs at them, but they escaped unhurt fortunately. Besides complainant, his brother Khalas Khan also witnessed the occurrence. The complainant side raised a commotion, whereupon the accused left for their houses. Sher Bahadur succumbed to his injuries at the spot.
Motive behind the occurrence was that on the night between 4/5.9.1997, car belonging to Muhammad Sher accused 'had been snatched near Chhidru Chowk. Sardar Khan alias Dara, a proclaimed offender, real uncle of Mushtaq Ahmad was blamed for the said occurrence. All the accused after having counselled with each other, not only attacked on the Dera of Jahangir, but also waylaid them. They committed murder of Sher Bahadur and murderous assault upon Mushtaq Ahmad, who in the injured condition, was shifted to Civil Hospital, Mianwali for his treatment. Dead-body of Sher Bahadur was taken by the complainant to the Police Station, where he lodged F.I.R. (Exh.PN) against the accused.
5. Investigation into the crime commenced forthwith after registration of the case. The police after investigation found the accused guilty and challaned them to the Court to face their trial.
6. On receipt of challan, the Trial Court scrutinized it and found it fit to proceed with the trial.
Accordingly, charge was framed and put to the accused, to which they pleaded not guilty and claimed to be tried. Prosecution in order to establish charge against the accused was called upon to adduce the best possible evidence available at its end. In compliance of said direction, prosecution ventured to produce as many as thirteen witnesses in all.
7. Out of the whole It, evidence of Dr. Malik Jahangir (P.W.1), Nawab Khan,. Constable (P.W.2), Dr. Maqbool Mubarik Malik (P.W.3), Zafarullah Khan, MHC (P.W.5), Khan Bahadur Khan (P.W.8), Mushtaq Ahmad Khan (P.W.9) and Amanullah (P.W.12) is of great significance, whereas that of remaining witnesses is of formal nature.
Dr. Malik Jahangir (P.W.D medically examined Mushtaq Ahmad (P.W.9) in an injured condition and observed two injuries on his person.
Nawab Khan, Constable (P.W.2) appeared to testify to the factum of recovery of rifles (P1 and P2) at the instance of Abdul Sattar and Abdul Rehman-accused (since acquitted).
Dr. Maqbool Mubarik Malik (P.W.3) performed autopsy on dead-body of Sher Bahadur and observed two injuries on his person. According to him, he died due to haemorrhage and shock resulting from injuries Nos 1 and 2, which were sufficient to cause death in the ordinary course of nature.
Zafarullah Khan, MHC (P.W.5) also appeared to testify to the factum of recovery of guns at the instance of Gul Kamand Khan, Saadullah Khan and Saifullah Khan-appellants.
Khan Bahadur Khan-complainant and Mushtaq Ahmad Khan (P.Ws. 8 and 9),, respectively, are eyewitnesses of the occurrence. They furnished full account of the occurrence viewed by them.
Amanullah (P.W.12) shifted Mushtaq Ahmad, injured P.W., to the hospital and got him medically examined.
8. When no further evidence was left to be adduced, learned prosecution gave-up remaining witnesses being unnecessary and after tendering in evidence report of the Chemical Examiner (Exh.PR) and that of Serologist (Exh.PS) declared THE prosecution case close.
9. Now the trial shifted to next important phase, in which the accused were called upon to make their statements under Section 342, Cr.P.C, to enable them to explain all incriminating evidence adduced against them. They proclaimed their absolute innocence in the matter and alleged their false involvement in the case due to animosity. They did not opt to make statements oh oath under Section 340(2),'Cr.P.C, in disproof of accusations brought against them. They excepting Abdul Rehman-accused desired not to produce defence, evidence and accordingly Abdul Rehman got examined Abdul Razzaq, SI as D. W.l in his defence.
10. The learned Trial Judge after considering totality of facts and circumstances, revolving around this matter, pronounced verdict of guilt against the appellants and punished them as afore- mentioned.
11. Learned counsel for the appellants pressed into service following points while praying for their acquittal:-
(i) That F.I.R, was recorded after performing preliminary investigation at the spot. According to complainant (P.W.8), Muhammad Nazir, S.I. (P.W.13) consumed two/three hours in recording F.I.R.
(ii) That medical examination of Mushtaq Ahmad (P.W.9) was conducted by Dr. Malik Jahangir (P.W.D on the day of occurrence at 10.45 a.m., whereas distance between the place of occurrence and the hospital is not less than 15/20 kilometres. Fie was taken to the hospital by Amanullah (P.W.12), who resided at a distance of four furlongs from the place of occurrence. He was informed of the occurrence by a kid and then he reached the venue of occurrence. The story of his taking Mushtaq Ahmad (P.W.9) to the hospital is false.
(iii) That deep-rooted enmity is available amongst both the sides. Witnesses are not only related inter se but also to the deceased. Their statements do not receive corroboration from any independent source. They have been wrongly relied upon by the learned Trial Judge against the appellants. They have been disbelieved qua the acquitted accused.
(iv) The ocular account is contradicted bv the medical evidence.
12. As against this, learned counsel for the State assisted by learned counsel for the complainant submits that it is a daytime occurrence; that the appellant's names are-mentioned in the F.I.R, with specific roles played by them during occurrence. They support judgment of the Trial Court.
13. We have consciously heard and soberly considered respective arguments of learned counsel for both the sides. We have also gone through the evidence on record with their able assistance.
The event giving rise to the charge occurred on 6.7.1997 at about 10.30 a.m. In the area of village Chhidru, situate at a distance of 11 kilometres from the Police Station. Complainant after termination of the occurrence shifted the deceased to the Police Station by means of a wagon.
Amanullah Khan (P.W.12) has stated that he left the dead-body at the spot and took the victim of assault, namely, Mushtaq Ahmad Khan (P.W.9) to the hospital by mean of a wagon, which was available at Dau Khan. It means that the dead-body remained at the spot for sufficient time. The complainant has also admitted that the dead-body was lifted from the place of occurrence after about one hour, as they had to wait for a vehicle. He also admitted that when Mushtaq Ahmad Khan (P.W.9) was taken 'to the hospital from the spot, they found that Sher Bahadur had expired by then. From these facts it can easily be presumed that the complainant reached at the Police Station at about 12.0 noon. The next fact admitted by him is that Muhammad Nazir, S.I. (P.W.13) consumed almost 2V2 or three hours in drawing-up the F.I.R. The dead-body was again brought to the place of occurrence and from there it was despatched to the mortuary for postmortem examination. Spending of more than an hour at the place of occurrence and then taking the dead- body to the Police Station clearly means that the complainant consumed long time to build-up a story of his choice after entering into deliberations and conference with each other by procuring false eye-witnesses of the occurrence. None else except his own brother Khalas Khan was named as an eye-witness in the F.I.R. He too was not produced at trial. Time of recording of F.I.R, is given as 12.00 noon on 6.9.1997. Muhammad Nazir, S.I. (P.W.13) had taken 2 V2 to 3 hours in recording the F.I.R., but strangely the time mentioned in column No. 1 thereof is 12.00 noon, It should not have been before 2.30 or 3.00 p.m. The dead-body was not despatched to the mortuary from the Police Station, It is also not understandable, It was brought back to the venue of occurrence, from where it was sent to the mortuary.
This F.I.R, is swollen with a large number of accused persons, It appears that by taking advantage of the incident, the complainant tried to implicate maximum number of adversaries. The manner and mode of recording of F.I.R, has shattered our confidence. We treat story mentioned in the F.I.R, as illegitimate, It would not be safe to rely upon an F.I.R, in the criminal administration of justice.
14. The other important factor, which strikes at the very root of the case, is that fifteen out of the nominated accused have been acquitted of the charge against them. This occurrence firstly started at Dera of Jahangir Khan, where shall of firing was done by the accused with their sophisticated i.e-arms. None was injured in the said incident. No empties from the spot could be secured by the police during course of spot inspection. Where did empties go is not known. The second occurrence took place near the house of Muhammad Zaman, where the appellants along with three others, namely, Shah Alam Khan, Najeebullah Khan and Ajmal Khan, resorted to firing at the complainant side. The net result of which is a solitary (Xxxiii injury each on the person of Sher Bahadur deceased and Mushtaq Ahmad (P.W.9). Even from this spot, no empty could be collected by the police. The accused had hurriedly levanted from the spot after end of the occurrence.
Complainant for the first time stated during course of cross-examination that empties had been taken away by the accused. If it was so, then this fact should have been given by him in the first information report or during course of investigation, which was carried out by different Investigating Officers, ln this way, complainant has come out with a false and frivolous explanation with regard to non availability of empty shells at the spot.
15. Now the next circumstances, which establishes falsehood of the statement of the complainant, is that neither he nor his brother Khalas Khan suffered any injury. There was absolutely no visional obstruction in-between them and the accused, who also continued firing at them, which remained ineffective. We are not inclined to admit of presence of the complainant and Khalas Khan at the spot at the relevant time of occurrence. None from that locality came forward in support of his version and according to statement of Abdul Razzaq, S.I. (D. W.l), he also conducted investigation and gave a clean state to all the accused, except abdul Rehman. He was S.H.O, then and after registration of the case took over the investigation from Muhammad Nazir, S.I. (P.W.13), who recorded the F.I.R. He categorically admitted the, suggestion put to him by the other side that a large number of persons had put-up appearance before him to testify to the factum of false involvement of the accused persons. Mushtaq Ahmad (P.W.9) is shown to have arrived in the hospital on 6.9.1997 at 10.45 a.m. The date of discharge is not mentioned against the relevant column. Mushtaq Ahmad, injured P.W. Left the hospital without permission of the doctor. Doctor did not send any report of arrival of injured in . The hospital to the. Police. Name of relative or friend, Amanullah son of Jahangir Khan, maternal cousin of Mushtaq Ahmad, injured P.W. Is mentioned in the relevant column. We have carefully examined this entry, It was been made subsequently which is as clear as the daylight. Date of examination, 6.9.1997, finds mentioned in the medicolegal report, but time at which he was examined by him is not mentioned. Dr. Malik Jahangir (P.W.1) observed following injuries on his person:-
(1) A i.e-arm entry wound 14 x 14 c.m. On the back of superior part of left buttock, It is muscle deep and 25 c.m. Below left illiac crest. The edges of this wound were burnt and blackened.
(2) An exit wound 7x2 c.m. On the back of lumber spine in the middle line, It is 10 c.m. Above coccyx and 7 c.m. Super medial from injury No. 1.
Examination according to his Court statement was done at 10.45 a.m. Duration of injuries furnished by him is one to three hours. This duration does not tally with the time of occurrence. This injury could have been sustained by him at 7.45 or 8.45 a.m. As well. He has admitted during course of cross-examination that he did not lay an information before the police regarding arrival of Mushtaq Ahmad injured in the hospital. He also did not record his statement. According to him, edges of the entry wound were burnt and blackened and the shot should have been made by the assailants from within a distance of six feet. Injury No. 2 was the exit wound.
Saifullah, Patwari (P.W.6) prepared site plan of the place of occurrence as per instructions from the police and on the Plantation of the witnesses. The distance of firing on him is about 15/16 karams, which comes to more than eighty feet. Edges of the wound could be burnt and blackened only when the i.e was made from within a distance of six to twelve inches at the most. When the witness during trial had come to know that the doctor had opined that shot was made at him from within six feet, he brought a drastic change in his statement by alleging that shot was made from a distance of six feet. He did so in order to reconcile his statement with the medical evidence, It appears that he has no respect for truth and justice. The nature, dimension and locale of injuries is such that he ought to have been admitted -to the hospital for his treatment and management of injuries, It is a penetrating through and through injury and it is strange to note that no bone was fractured and no internal organ was damaged. The doctor did not dare to speak about the X-rays report, the record of which was available in the hospital. He should have stated about the result of X-rays in his statement. Mushtaq Ahmad (P.W.9) did not state that he underwent treatment for his injuries from anywhere. This medical report appears to be doubtful.
16. Amanullah (P.W.12) lives at a distance of four furlongs from the place of occurrence. A boy informed him at his house about the firing incident. Then he came to the spot on foot and after making arrangement of a vehicle left for the hospital. His reaching hospital with Mushtaq Ahmad P.W. At 10.45 a.m. Does not rise at all. It is a brazen faced lie, as the occurrence started 10.30 a.m. On 6.9.1997. According to contents of F.I.R., Muhammad Sher fired at him through his Klashinkov at his flank. His statement in this regard also contradicts contents of medico-legal report, as the entry wound is located at the back of superior part of left buttock and is not located at left flank. The availability of burning and blackening and non-availability of injury at his left flank speak about falsehood of his statement. We accordingly discard his evidence as well.
17. Likewise blackening of edges were noticed by Dr. Maqbool Mubarik Malik (P.W.3) on the solitary entry wound on the person; of Sher Bahadur deceased. The injuries on the person of deceased read as under:-
(1) A i.e-arm wound of entry V2 c.m. And V2 c.m. With blackening of edges on the posterior surface of left shoulder area, 8 c.m. Below lateral end of left clavicle and 6 c.m. Above left axila.
(2) A i.e-arm exit wound of injury No. 1.5 c.m. x 1.5 C.m. On the back of right chest, just posterior to right axila.
Again we would say that blackening could occur from within a range of three to four feet in maximum, but the distance of firing at him in the site plan is stated to be 15 karams, which would mean 82 72 feet. Complainant admits of this distance of firing at the deceased as indicated in the site-plan, ln this way, ocular account. Is belied by the medical evidence.
18. As regards motive; on the night between 4/5.9.1997, car of Muhammad Sher appellant was snatched near Chhidru Chowk. Sardar Khan alias Dara, who is a proclaimed offender in several cases, was suspected for this crime. He is stated to be relative of complainant party and paternal uncle of Mushtaq Ahmad Khan (P.W.9). No F.I.R, qua the said occurrence was produced at trial. This incident alone was not sufficient to bring about this occurrence. We are not inclined to place reliance on this as, the accused had no direct link with it.
19. Since no recovery was effected from Muhammad Sher appellant, so recoveries regarding other accused are inconsequential because neither empties stood recovered from the spot nor the weapons were even despatched to the Forensic Science Laboratory for examination purposes. The appellants have also denied the charge against them and were declared innocent by Abdul Razaq, SI (D. W.l).
20. Net result of our whole quantum of analysis of evidence is that the witnesses are not only related inter se but also inimical. They are wholly unreliable. There was a long standing avowed animosity between the two sides. Further, their statements do not receive corroboration from an independent source of unimpeachable character. The prosecution version being unnatural, improbable, absurd and ridiculous one is turned down.
21. For all these reasons, we accept this appeal, quash convictions of the appellants and order their release from custody forthwith if not required to be detained in any other case.
22. Death sentence awarded to Gul Kamand Khan appellant is not confirmed and Murder Reference is answered in the negative.