1997 P Cr (PLP)

SARDAR MUHAMMAD RAZA, J.

Gul Janan son of Gul Zaman alongwith Humayoon, Akbar Zaman and Jalat Khan, his collaterals, all belonging to Village Biland Khel of Police Station Pezu, in the morning of 25-7-1989, had gone to Wandah Totai in order to cut shrubs and bushes from the land. At about 10-00 hour after finishing their work, they started back for their village. Gul Janan and Humayoon were going ahead while Akbar Zaman and Jalat Khan were behind at a distance of 209/210 paces. When they reached the landed property of Mir Ghulam, from a ditch nearby, Mir Ghulam, his two sons Badshah Khan and Gul Tiaz, Odin Shah and Munawar Khan opened indiscriminate fire simultaneously at Akbar Zaman and Jalat Khan with which they got hit, both staggered backwards for some distance, fell down and died on the spot. Out of fear Gul Janan complainant and Humayoon ran away and succeeded in reaching the village

2. The dead bodies remained on the spot and Gul Janan at 11-30 a.m. reached Police Station Pezu and lodged a report exactly to the above effect, which was recorded at Serial No.128 of the Register concerned. The Investigating Officer took the complainant along, went straight to the spot, prepared injury sheets and inquest reports of the dead bodies, despatched those to Civil Hospital, Lakki Marwat for post-mortem examination, prepared the site plan, collected blood from two places, recovered 28 empties of klashnikov from one point inside the ditch, another spent bullet from near the dead body of Akbar Zaman and examined the necessary witness. It may be stated at this stage that Mir Ghulam, Odin Shah and Munawar Khan were specifically attributed being armed with klashnikovs while Badshah Khan and Gul Tiaz were attributed rifles of .303 bore.

3. The accused remained in abscondence for quite some time and on their arrest, all were tried in the Court of Session at Lakki Marwat. Vide judgment, dated 4-10-1994, the learned Sessions Judge acquitted Badshah Khan while held all the remaining four to be guilty under section 302/34, P.P.C. for the double murder of Akbar Zaman and Jalat Khan. All were awarded imprisonment for life and a fine of Rs.20,000 in default of payment whereof they were to undergo rigorous imprisonment for three years, each on two counts. Mir Ghulam, Odin Shah, Munawar Khan and Gul Tiaz have come up in appeal.

4. There are more than many things that required to be seriously attended to. We will take motive at the first instance. In the F.I.R. old blood feud is alleged to be the motive between the parties but from the evidence it transpires, as admitted, that the real enmity was with Gul Janan and Humayoon and not with Akbar Zaman and Jalat Khan. This doubtful affair is further enhanced when one looks into the site plan where the two eye-witnesses having enmity with the assailants had safely passed in front of the assailants but were never fired at. It is pertinent to note that when the real enemies passed by and went 209 paces ahead, the assailants thought of opening indiscriminate fire but at those two with whom enmity is not proved. It is further to ponder that even at the time of fire the two witnesses were located nearer to the assailants at a distance of 57 paces as compared to the two victims who were at a distance of 97 to 99 paces, both the groups equally well-visible to the assailants. We are persuaded to raise doubts regarding the presence of Gul Janan and Humayoon, the alleged eye witnesses. As they had enmity with the assailants and as they were closet: to the assailants comparatively and as they had passed in front of the assailants, they were the one to have been fired at, in case they were present on the spot.

5. It is categorically mentioned that after being hit with the fire, the victims staggered backward for some distance and then fell down and died. This is seriously belied by the site plan where Akbar Zaman fell, of course backward, at a distance of only one pace while Jalat Khan had gone 68 paces away to fall at point No.4. The eye account does not fit in at all with the descriptions given in the site plan by those very witnesses.

6. In the same breath, it is said that the two persons fell down and died on the spot. This can be believed so far as Akbar Zaman is concerned but not at all, so far as Jalat Khan is concerned. He not only walked for 60 long paces but according to post-mortem report, he could have lived for at least one hour because the time between his injury and death was specifically given as one to two hours.

7. Obviously, as the prosecution maintains, the two deceased namely Akbar Zaman and Jalat Khan had remained together from morning till the time of their death at 10-00 a.m. -It is also certain that they had travelled from their village to Wandah Totai in order to work in their fields and it is admitted that they all had worked for four hours continuously. In this situation it is impossible to believe that Akbar Zaman would be having semi-digested food in his stomach, which he of course had according to post-mortem report. This most certainly indicates that the deceased and the witnesses were not together.

8. Four persons are leaving for a laborious job in the fields. They all have been cutting the shrubs and bushes together but still there was only one pickaxe with them. One witness says that it was with him while the other says that it was with Akbar Zaman deceased. We believe that it was with none because neither it was dropped on the spot nor it was left in. the field nor was it produced before the Investigating Officer to even prove that they had at least gone to the fields for the said work and were together, though the presence of one pickaxe is not sufficient for four to be together.

9. One witness says that the bushes cut by them were lying on the spot and were shown to the Investigating Officer while the other says that those were burnt on the spot. The Investigating Officer is clear about the fact that he had never gone to the field at all. The cutting of bushes and the presence of cut material on the spot could have proved at least someone's presence in the field but nothing has been proved to that effect as well.

10. The indiscriminate firing was so extensively attributed that each of the assailants holding klashnikovs had at least fired one charger let us not fix the proof thereof and let us assume that numerous shots those must have been, and fired at two persons walking close to each other. It is astonishing to note that the body of Akbar Zaman is riddled with bullets while Jalat Khan receives only one entrance wound the direction whereof is slightly from above downward. This also shows that the victims were not hit in the circumstances given by the s- called eye-witnesses. Pertinent it is to note that Akbar Zaman has got entrance, wounds on all the four sides of his body, which does not fit in with the picture narrated by the eye-witnesses and revealed from the site plan.

11. It is categorically alleged by the complainant that the two witnesses had succeeded in running towards their village. Much later at trial they realised that such conduct might not be taken to have entailed consultations and deliberations at the village and so a somersault was taken to the effect that they straight went to the police station. Both the conducts tend to negate each other notwithstanding the fact that their going straight to the police station was not a natural conduct. They were hardly a furlong away from the village and thus the natural reaction controlled by quick reflexes would have been to rush to the village, inform all concerned, arrange for the cots to put the dead bogies and also take those either to the police station or to the village or to bring somebody to stay with the dead bodies till the arrival of the police. This having not been done despite having been alleged once is an indicator of the fact that they were not present on the spot. This is further indicative of the fact that the F.I.R. was recorded with extensive consultations and deliberations to avoid the suspicion thereabout, a plea was taken at trial that the two witnesses had straight gone to the police station.,

12. Quite funny it looks when one finds that they were not even together at the police station. Both of them have alleged so and one claims to be physically present at the time when the F.I.R. was being recorded yet the Investigating Officer has totally denied the presence of Humayoon. To this effect the statements of Gul Janan and Humayoon are destructive of each other. What to talk of some consultations or deliberations, it is proved from record that the F.I.R. was not recorded even till the time of post-mortem or till the preparation .of injury sheets and inquest reports. The F. I. R. allegedly stood already recorded yet-the serial number thereof is not written on the inquest reports and one of the injury sheets. In column No.3 of the inquest reports no time of occurrence is mentioned, meaning thereby that it was not known even till then. The body of Akbar Zaman is sieved with bullets but his injury sheet and inquest report would suggest that only two wounds could be visible-to the Investigating Officer. The dead body of Akbar Zaman in column No.24 of the inquest report (Exh.P.M./7) is shown to be lying on cot word "Charpai" is written over the drawing of a cot whereas it is denied by all the witnesses including the Investigating, Officer that someone from the village had at all arrived on the spot and had brought any cot wherefrom the cot comes to be provided for Akbar Zaman and why was it not available to Jalat Khan, is another strong indicator that the two bodies had been differently placed and not killed in the circumstances alleged by the prosecution.

13. Three persons armed with klashnikovs have resorted to firing simultaneously and they are at some distance from each other. It is quite interesting that 28 empties of klashnikov were recovered from one place at point No.

14. Nothing was sent to the Fire-arms Expert to see if it was the work of one assailant, two or five. One spent bullet is recovered from near dead body of Akbar Zaman but it also was to send to the Fire-arms Expert as to whether ii was fired from a klashnikov or a .303 bore rifle.

14. No trail of blood is found on a 68 paces long track adopted by Jalat Khan deceased. The time of occurrence is also suppressed by the prosecution because the post-mortem examination was conducted at 5-00 p.m. and 6-00 p.m. whereas the dead bodies allegedly had reached the hospital at 12 noon. One cannot find reasons for such delay because no such reason is advanced by the prosecution itself:

15. The learned Assistant Advocate-General was of the view that as the F.I.R. is lodged at the police station, it is obviously a prompt one. This is no proof of promptitude, by itself. It was further alleged that the injuries on the person of deceased proved the number of assailants and the different sizes of inlet wounds proved the different types of weapons used. This can be put even the other way around, in that, all these descriptions were given after consulting the post-mortem report.

16. In the above circumstances, we have no two views over the notion that the case is full of more than many doubts, that the occurrence has not taken place in the manner alleged and the alleged eye-witnesses were not present on the spot. All the appellants are entitled to the benefit of doubt.

17. The appeal is accepted, the impugned convictions and sentences recorded by learned Sessions Judge, Lakki Marwat on 4-10-1994, are set aside and the appellants Mir Ghulam, Odin Shah, Munawar Khan and Gul Tiaz are hereby acquitted of the charge under section 302/34/148/149, P.P.C. on two counts. If not required to be detained in any other cause, the appellants are directed to be released forthwith. N.H.Q./2078/P Appeal accepted