1989 PLP 939 (SCMR)

(4) Three exit wounds 2" above the right iliac crest on the back each 1/4" x 1/4" at a distance of 1/2" from each other. (5) Exit wound on the abdomen one inch above the umbilicus 1/4" x 1/4" (6) Exit wound front of abdomen 1/2" below the middle of right ribs 1%4" x 1/4." Sixth and seventh left ribs were found fractured at the back. Left pleura and left lung were injured. Walls, peritoneum and stomach were also injured. The stomach was empty. Small and large intestines, liver and spleen were injured. The injuries were caused by firearm. Two large pellets removed from under the skin near wound No.4, one large pellet removed deep down near wound No.2 and one large pellet recovered from the clothes of the deceased were handed over to the police. This P.W. also examined Muhammad Riaz and found three firearm injuries on his right knee.

6. Lady Doctor Mrs. Naseer Ahmad Khan (PW 3) examined Mst. Nusrat, aged 12 years, on 7‑6‑1975 at 11.15 a.m. and found two firearm injuries on her person. She also examined Mst. Parveen, aged 22/25 years, on the same day at 2.45 p.m. and found one firearm entrance wound on upper portion of right labia 1" x 1" going deep with a corresponding cut in her shalwar.

7. The learned trial Court then recorded the statements of Mashal Khan, Sabir and Farid which were a bare denial of the prosecution case. All of them deposed that they had been charged falsely because of their enmity with the complainant side.

8. The learned trial Court simultaneously proceeded with the trial of Sessions Case No.86/8 of 1976 and after recording the statements of the prosecution witnesses and the accused vide its two separate judgments dated 10‑8‑1976 acquitted all the accused in both the cases. In Sessions Case No‑8518 of 1976, the State filed an appeal under section 417 Cr.P.C. against the acquittal of the three appellants which was allowed on 23rd January 1978 and the case was remanded to the trial Court for further inquiry with regard to the injuries suffered by Mashal.

9. The trial was then taken up by Mr. Rasool Khan Khattak, Additional Sessions Judge, Haripur, as directed by the High Court. Mashal in the meantime _ absconded and he was ordered to be proceeded against under section 512, Cr.P.C. In this trial, he recorded the statements of some of the witnesses and that of Farid and Sabir under section 342, Cr.P.C. and vide his judgment, dated 16‑7‑1978 acquitted Farid and Sabir of charges under section 302/307/34, P.P.C. Through the same judgment it was further held that the absconding accused, namely, Mashal and Khoidad, on their arrest be tried separately. It seems that Mashal subsequently surrendered himself. He was tried by Mr. Muhammad Nawaz Khan, Additional Sessions Judge, Abbottabad at Haripur, under section 302/307/34, P.P.C. and after recording the necessary evidence, acquitted of the charge by giving him the benefit of doubt vide judgment, dated 13‑1‑1980.

10. The State filed two criminal appeals under section 417, Cr.P.C. bearing Nos. 11 of 1979 which was against the acquittal of Farid and Sabir and 191 of 1980 against the acquittal of Mashal. Both these appeals were taken up by the learned Division Bench of the Peshawar High Court, Abbottabad Circuit, and both were allowed as per the impugned judgment. .

11. The appellants, namely, Mashal, Farid and Sabir, have filed the present appeal bearing No. 49 of 1988 against their conviction and sentence, and the complainant, Karim Dad, has also filed a petition bearing No.45‑R of 1988 .for enhancement of the sentence of the above named appellants. As both the matters arise out of the same judgment of the High Court, we propose to dispose them of by this judgment.

12. We have heard the learned counsel for the parties for and against the appeal and the petition and have gone through the evidence with their assistance. The learned counsel for the appellants vehemently contended that in this case the prosecution has miserably failed to establish its case against his clients inasmuch as the eye‑witness account is not only contradictory and discrepant but is also in conflict with the other circumstantial evidence, i.e., the medical evidence and the site plan. He further submitted that as per the evidence it is apparent that it was an un-witnessed crime and the motive having not been proved, the appellants, who were on inimical terms with the complainant side, have been falsely implicated in the commission of the offence. The above submissions were, however, controverted by the learned counsel for the opposite side.

13. After considering the arguments in the light of the evidence, we think that the grievance of the learned counsel for the appellants has force.

14. It has been alleged in the F.I.R. lodged by Karim Dad that on the fateful day at about 5 a.m. when he and Muhammad Zaman P.W. were busy washing their hands and faces, Mashal, Farid and Sabir appellants and Khoidad, the absconding accused, duly armed with rifles entered the mosque. Mashal was the first to fire effectively at Kala who was reciting the Quran and he was followed by Khoidad whose fire Kala also proved effective. Farid and Sabir appellants then fired effectively at his uncle Ayub with their Kartusi rifles. Kala and Ayub died at the spot and the accused after firing with their weapons at random made good their escape. Except Abdul Jabbar, his other uncle, no one else was present in the mosque.

15. At the trial, though the role attributed by the complainant to each of the three appellants and the absconding accused in the F.I.R. was maintained but there is a marked difference rather contradiction in the manner of describing the incident in the F.I.R. and at the trial. For instance, the allegations made by the complainant in the F.I.R. and the deposition made by him and Muhammad Zaman (PW 10 ) at the trial that Kala deceased was reciting Quran in the mosque has not at all been established in that the investigating officer did neither find nor recovered any copy of the Quran or the rehl. The place where Kala deceased was allegedly reciting the Quran too has not been indicated by the eye‑witnesses to the investigating officer and thus the said spot has not been shown in the site plan. At the trial, Karim Dad (P.W.9) and Muhammad Zaman (PW 10) have deposed that Mashal appellant went near the window intervening between the inner Veranda of the Mosque and the outer Veranda of the Musafirkhana of the mosque and fired a shot with rifle at Kala and that Kala ran from there to the courtyard of the mosque and was fired at by Khoidad (absconding accused) with rifle effectively. This has neither been described so in the F.I.R. nor hqts the firing with rifles been supported by the medical evidence in that the doctor did not find any rifle injury on the person of Kala deceased, the injuries found were those of shotgun. Further, injury No.3 on the person of Kala deceased had a charring mark. According to the prosecution at the time of first firing Kala deceased was at point 1‑alif whereas his assailants were at points 3 and

4. The distance between points 3 and 4 and 1‑alif is between 10 and 11 paces. Thus firing from such a distance cannot cause charring. According to the site plan the dead body of Kala was found at point No.l. No trail of blood was found between points 1‑alif and 1 and there is also no evidence that any of his assailants went near Kala and then fired at him resulting in an" injury having charring.

16. As for the firing at Ayub deceased by Sabir and Farid, the witnesses at the trial have admitted that at the crucial time Ayub was sitting on a platform and was performing Wazeefa; that the three appellants and the absconding accused entered the mosque from the main gate located towards the south of the mosque and it was thereafter that Sabir and Farid fired effectively at Ayub from the courtyard of the mosque. According to the site plan, the main gate of the mosque is at point 14 wherefrom the accused were alleged to have entered the mosque. Point 2‑alif where Ayub deceased was alleged to be present at the time lay ahead towards the north of point 14 at a certain distance. Points 5 and 6 which indicate the presence of Sabir and Farid, respectively, are further ahead towards the north of point 2‑alif. Now it is not understood why should Sabir and Farid pass nearby Ayub deceased, go ahead of him for some distance and then fire at him at the risk of disclosing their identity when they could have easily fired at him from point 14 ‑or when they were passing nearby the deceased. Furthermore, there is a very big lacerated injury on the left thigh of Ayub deceased which according to the post mortem report was caused by a blunt weapon. None of the witnesses has said an thing as to how this injury was caused and at whose hands. Mst. Parveen (P.W.11) who also claims to be an eye‑witness has hardly supported the other two eye witnesses. Strangely enough no empty of any weapon has been recovered from points 3 and 4, and 5 and 6, where the alleged assailants were present and fired at the two deceased and also there is no evidence that any of the assailants firing at the two deceased had moved from the points indicated above.

17. According to the site plan prepared at the instance of the eye‑witnesses. ,ic empties of 7 mm and three empties of 12 bore freshly discharged were covered from point 7, seven empties of .12 bore and one empty of 7 mm were covered from point

8. Point No.7 is just below point No.2‑alif where Ayub 4 ceased was fired at whereas point No.8 is in the Musafirkhana of the mosque is nobody's case that either of the parties had fired from point No.8, but since large number of empties were found from point No.7 which is adjacent to point no .2, it can be safely said that it was none else but Ayub who fired at his assailants from point No.2 when he was alive. Some pellets and cardboards were found from points Nos.9 to

24. This clearly indicates that there was a cross firing) tween the two deceased and their assailants, as a result of which the two l, ceased lost their lives. The fact that there was cross firing between the parties established by the injuries sustained by Mashal appellant who had) been fully established by the injuries sustained by Mashal appellent who had received a firearm injury on his left groin in the middle 3" x 2" going deep, :other small entrance wound 1/2" below injury No.l, 1/2" x 1/2". There were ' .o six exit wounds on his outer and upper portion of the left thigh at a distance 1/2" from each other, each 1/2" x 1/2". Two cardboard pieces weighing 30 wins were removed from the clothes of Mashal and one large pellet weighing 50 rains removed from his skin on outer and upper portion of his left thigh. Besides Mashal, three other persons, namely, Mst. Nusrat, Muhammad Riaz and Mst.l irveen, have also stamp of firearm injuries on their persons. The injuries on the e E arson of Mashal have been conveniently suppressed by the eye‑witnesses and so the injuries to Mst. Nusrat and Muhammad Riaz.

18. The re‑appraisal of the entire evidence made by us has led us to the inclusion that the case against the three appellants as to the charge of the f murders of Kala and Ayub is not free from doubt. The ocular evidence having come from interested witnesses is not only discrepant but is belied by the medical evidence. The motive too has not been established.

19. In view of the above the conviction of the three appellants, namely, ashal, Farid and Sabir, under section 302/34, P.P.C. cannot be sustained. Their apeal is accepted, the order of the High Court is set aside and they are acquitted the charge of murders.

20. So far as the conviction of the three appellants under section 307/34, P.C. for causing injuries to Mst. Parveen is concerned, Mashal appellant cannot t' accused of causing injuries to her because the injury suffered by her was a pellet injury whereas Mashal was alleged to be armed with a rifle. He is thus, acquitted of the charge under section 307, P.P.C. also. Of course, Sabir and Farid not escape this conviction. Mst. Parveen received a pellet injury on her person their hand. The conviction and sentence of Sabir and Farid under section 17/34, P.P.C. awarded to them by the High Court is justified and accordingly maintained.

21. The appeal is thus allowed with the above modification.

22. The petition filed by Karim Dad for enhancement of the sentence of the appellants automatically fails and is hereby dismissed. M.B.A/f‑94,/S Order accordingly.