1987 PLP 3121 (MLD)

5. The ocular account was deposed to by Kilasa Khan (P.W.7), Khan Zaman (P.W.8) and Fateh Khan (P.W.11). Fateh Khan repeated the facts given by him in the F.I.R. with slight variations. P.Ws.7 and 8 corroborated his statement to the extent of accused having come to the house of the complainant, having fired at them and of fatal shot having been fired by Amir, hitting Mst. Amiran Khatun. However, the statement made by Fateh Khan that they were sitting inside the house was not corroborated by Dilasa Khan P.W., who instead stated that they "were sitting in front of the door of the house of Fateh Khan 4/5 karams away towards south outside." Khan Zaman while giving the names of the accused had not named Alam Khan and in this regard cross-examination done by the A.D.A. with the permission of the trial Court did not bear any fruit. Fateh Khan (P.W.11) during cross-examination admitted some previous incidents that had taken place between them and the accused party. In that regard he mentioned the fact of Muhammad Amir having set at fire his tube-well and of his (Fateh Khan) having got a case registered against him, a month prior to this occurrence. While answering to another question, he stated that, "the F.I.R. was not recorded at 2 a.m. in the night but the complaint was drafted at the place of occurrence at 6 a.m., the next day when the police arrived at the place of occurrence." Fateh Khan as well as the other two eye-witnesses, who appeared at the trial, admitted their inter se relationships. He also admitted that the other eyewitnesses named in the F.I.R. but were given up were also related to him. Ata Muhammad, F.C. who had been entrusted the service of summons on the absconding accused appeared as P.W. 10 and deposed about his having made attempts for serving the accused and of his failure in that regard. Evidence of recovery of guns from Alam Khan and Ratas Khan at the time of their arrest was also led, at the trial.

6. Ratas Khan and Alam Khan during their statements under section 342, Cr.P.C. denied the prosecution case and while pleading innocence set up plea of false implication on account of their enmity with the complainant and other P.Ws. Alam Khan denied that he had absconded.

7. The learned Additional Sessions Judge, Mianwali held Ratas Khan and Alam Khan guilty under sections 148/149,307/149 and 302/149 P.P. C., convicted them accordingly and awarded sentences as follows:- Under section 148/ Two years R.I. plus a fine of Rs. 2,000 each, in 149, P.P.C:- default whereof to suffer further R.I. for six months. Under section 307/ Ten years R.I., plus a fine of Rs. 5,000 each, in 149, P.P.C. default whereof to suffer further R.I. for one year. Under section 302/ Death, plus a fine of Rs. 5,000 each, in default 149, P.P.C. whereof to undergo R.I. for one year each. Half of the amount of fine, on recovery, has been directed to be paid as compensation to the heirs of the deceased.

8. The convicts have filed appeal. The learned trial Judge has made reference for confirmation of death sentences. Both the matters are being disposed of by one judgment.

9. Learned counsel appearing for the appellant at the very outset made a statement at the Bar that Amir Khan absconding co-accused of the appellants, who, according to the prosecution, had initiates the occurrence, by raising Lalkara and had fired the only shot suffered by Mst. Amiran, which proved fatal, had died during police encounter, five/six months ago.

10. The contention of the learned counsel for the appellants that the P.Ws. in this case are related and inimical to the accused, of course is borne out from the record. None of the witnesses, who appeared at the trial, had denied their relationship inter se. Rather all of them have accepted this fact. Fateh Khan admitted that Amir Khan, co-accused of the appellants had burnt his tube-well, a month before the present occurrence. Said Amir Khan was real maternal uncle of Ratas Khan and real brother of Alam Khan appellants. The enmity between the parties thus is also admitted in a way. Although guns were stated to have been recovered from both the appellants at the time of their arrest but since no crime empty of .12 bore gun was found at the spot at the time of spot inspection by the Investigating Officer, there is no report of the guns wedding with any of the crime empties recovered from the spot. As such, the corroborative value of the recoveries of the guns is also almost nil.

11. This being the position, the statements of the eye-witnesses, who are related and inimical also shall have to be examined with more care and caution. The statements of the witnesses that five persons had been firing at them when they were sitting together in front of the house in the open, but none of them had suffered any injury, seems to be doubtful. Had five persons been firing on four persons sitting together on two charpoys in the open, someone of them must have suffered some injury. It is not their case that they had taken shelter before firing started. If a lady could have received a shot while standing inside the doors of the Kotha, how could these witnesses, who were sitting towards the side of the accused in the open, have escaped? The narration of the occurrence by the eye-witnesses, therefore, does not inspire confidence. P.Ws.8 and 11 are at variance about the place where they were sitting at the time of occurrence. Portions of their statements in this regard have been noted in the earlier part of this judgment. Yet the other important aspect of the case, which has attracted our attention is that complainant Fateh Khan has himself admitted during cross-examination that F.I.R. was not recorded at the police station at 2 a.m., as is the prosecution case. Rather the complaint was drafted at his instance at the spot at 6 a.m. when the police arrived in the village. This admission supports the contention of the learned counsel for the appellants that the occurrence was reported after consultations and deliberations and the complainant had involve all those persons, with whom he was either unhappy or had enmity. Even if the evidence of absconsion of Alam Khan is given any weight, that would not improve the case of the prosecution, in view of the doubtful nature of the testimonies of the eye-witnesses.

12. After careful consideration of the prosecution case and the evidence on record, we have come to the conclusion that the prosecution has not been able to prove its case beyond reasonable shadow of doubts. This appal is, therefore, accepted and the appellants are acquitted by way of grant of benefit of doubt. Death sentence is not confirmed. S.G.D./R-44/L Appeal allowed.