P L D 1979 Peshawar 190 (PLP)

MIAN BURHANUDDIN KHAN, J.

Barkat Ali, appellant, stood his trial before the learned Additional Sessions Judge, Peshawar under section 302/34, P. P. C. for committing the murder of Ajab Khan, deceased, by firing at him with the fire-arm, in furtherance of his common intention with his brother, Raza Khan, the acquitted-accused. He was convicted by the learned trial Court vide its judgment dated 4th of February 1979, and sentenced to imprisonment for life and a fine of Rs. 2,000 or in default, six months' S. I.

2. The convict has now come up on appeal to this Court against his conviction and sentence and there is also a Revision Petition No. 18/79 for awarding the normal penalty of death to the appellant. This judgment will dispose of both the appeal as well as the revision petition.

3. The prosecution case stated at the trial is, that on 2-9-1976 at about 8-30 a.m. Sher Muhammad, P. W. 7, alongwith Haya Khan, P. W. 8, Ziarat Gul, P. W. 9 and Mirbat (not produced) and Ajab Khan, deceased was present in his 'hujra' ; that at about 7-30 a.m. Ajab Khan, deceased, went out of the 'hujra' (baithak) in order to case himself and after a short While , Sher Muhammad P. W. 7, heard the report of two fire shots and on suspicion went out of the 'hujra' alongwith the other witnesses, Haya Khan, Ziarat Gul and Mirbat, and saw Raza Khan, the acquitted-accused, accompanied by the appellant, Barkat Ali, running towards their house, armed with rifles. On proceeding ahead, he saw Ajab Khan, deceased, lying dead near an uninhabited house. Shortly afterwards, many people gathered on the spot and carried the dead body of Ajab Khan to his house. Thereafter, Sher Muhammad, P. W. 7, went to the police post and lodged the report, Exh. P. A/1, at 8-35 a.m., which was recorded by Sher Ali Khan, P. W. 11, who was then incharge of the police post. The report was read over to him and he admitting the same to be correct, thumb impressed the same. The report was then sent to the Police Station Tehkal where a case was registered vide F. I. R. Exh. P. A.

4. Sher Ali Khan, P. W. 11, then proceeded to the spot and found the dead body of Ajab Khan, deceased, lying in his house, and he prepared his injury-sheet, Exh. P. C. and inquest report, Exh. P. C/l, and sent the dead body for post-mortem examination in custody of Badshah Mir, F. C. Then, he prepared the site-plan. Exh. P. B. correctly with the footnotes; took some blood-stained earth, sealed it into a parcel vide memo. Exh. P. D. As the appellant was not present in his house, a warrant under section 204, Cr. P. C. was obtained, which was returned unserved. Then the proclamation under section 87, Cr. P. C. was also taken out.

5. At the trial the prosecution examined the following witnesses: Dr. Liaqat Ali, P. W. 1 conducted post-mortem examination on the dead body of Ajab Khan son of Feroz Khan, aged 28 years, on 2-9-1966 at 12-00 hours and found the following injuries on external examination :- "(1) Fire-arm entry wound X in right 8th intercastal space in anterior axillary line. (2) Fire-arm exit wound 1/2' x 1/2' in 7th left intercastal space in anterior axillary line." On internal examination the doctor found thorax walls injured, visceral blood vessels injured, peritoneum, small and large intestines and liver injured. Stomach was normal and contained about 2 oz. of digested food. Chest was also injured. Habib Shah, F. C. P. W. 2, was entrusted with the warrant of arrest under section 204, Cr. P. C. against the appellant, Exh. P. E/1 and as he was not available the warrant was returned unserved. He also carried out the proclamation order under section 87, Cr. P. C. against the appellant. Mir Asghar, A. S. I. P. W. 4, arrested the appellant on 19-10-1977. Sher Muhammad, P. W. 7, stated at the trial that the deceased, Ajab Khan, originally belonged to Khajoori, tribal area, and was not related to him but had settled in the village, Garhi Sikandar Khan; that Abdul Majid, P. W. 12, is the real brother of the deceased while Farhad is the son of the witness; that rest of the P. Ws. are not related to the deceased; that the acquitted-accused, Raza Khan, is the real brother of the appellant; that on day of occurrence at 7 a.m. he alongwith Haya Khan P. W. 8, Ziarat Gul P. W. 9 and Mirbat (not produced), was sitting in his 'hujra' alongwith Ajab Khan, deceased, as it was raining. And when the rain stopped, Ajab Khan, deceased, went out of the 'hujra' (baithak) in order to case himself; that after about ten minutes he heard the report of two shots from the direction of the spot and got suspicious and went out of the baithak alongwith the other witnesses and saw Raza Khan, the acquitted-accused, and the appellant Barkat Ali, running towards their house, armed with rifles. He further stated that on going ahead, he met Farhad, his son (not produced) who informed him that some one has been shot in the nearby 'Khandar' (an abandoned house) that accordingly he went in that direction and found Ajab Khan, deceased, lying dead. Thereafter, many people came to the spot and they removed the dead body of Ajab Khan to his house and on the request of widow of the deceased he proceeded to Police Post Sarband and lodged the report, Exh. P. A/1, which he admitted to be correct at the trial. He further stated that one, Shaukat, is the brother of the appellant and a brother of Mirbat P, W. (not produced) is the son-in-law of the said Shaukat. Haya Khan, P. W. 8, made a statement on the same lines as that of Sher Muhammad, P. W.

7. Ziarat Gul, P. W. 9, resiled from his statement made earlier, and, therefore he was declared hostile and cross-examined by the Public Prosecutor. Abdul Majid, P. W. 12, brother of the deceased, stated that the deceased had no enmity with the appellant or with the acquitted accused, Raza Khan. On the contrary, they were related to Reza Khan, the acquitted-accused ; that Barkat Ali, appellant, and the deceased had jointly purchased a car for Rs. 35,000 but later on a dispute arose between them over the aforesaid car as the deceased had taken over the car and promised to pay the appellant his share of the purchase money; that he was present in his house on the day of occurrence when the dead body of Ajab Khan, deceased, was brought by Sher Muhammad and others to the house; that after the death of Ajab Khan he came to know that he was suspected for having carnel relations with Gohar Ali, maternal uncle's son of Raza Khan, the acquitted accused.

6. The appellant was examined under section 342, Cr. P: C. and he admitted that the son of Raza Khan, the acquitted-accused, is married to the daughter of Muhammad Ayub, brother of the deceased. He denied buying of a car and also unnatural relationship between his maternal uncle's son and the deceased. Regarding the commission of the offence, he denied his complicity and stated that he was charged at the instance of his enemies. As regards his abscondence, he stated that he was running a shop in Islamabad since 1971 and was not in the village during the days of occurrence. He, however, produced no defence.

7. Mr. Zahoorul Haq, the learned counsel for the appellant argued that on the same evidence Raza Khan, co-accused of the appellant has been acquitted by the Court of Session on 10-7-1977 ; that due to the lack of evidence, conviction of the appellant cannot be sustained. He also contended that as Raza Khan has been acquitted, conviction of the appellant under section 302/34, P. P. C cannot be maintained. He also referred to the statement of the witness, Sher Muhammad P. W. 7, who admitted in cross-examination that he saw Barkat Ali, appellant, and Raza Khan, acquitted-accused, running away from a distance of 300 paces from his Baithak and both the accused had their sides towards him and had wrapped themselves in 'chaddars'-hiding the lower portions of their faces; and that many people gathered on the spot after the occurrence but he had not disclosed the names of the culprits to them. Hayat Khan, P. W. 8's statement was also criticised on the ground that he had seen the accused from a distance of 200 paces, who had wrapped themselves in 'chaddars' up to their shoulders and had their sides towards him. The learned counsel for the appellant further contended that the prosecution has not examined Farhad, who could be the best witness in the circumstances of the case, as he was allegedly, coming from the 'fields after answering the call of nature. Referring to the medical evidence, the learned counsel submitted that the deceased was hit with a single shot as is evident from the statement of the doctor, and it is not attributed to the appellant specifically and the possibility cannot be excluded that some one else had fired a shot, or for that matter even if it is assigned to Raze Khan, he has been completely exonerated of the charge. In support of his contentions he cited Indian reported case Prabhu Babaji Navle v. State of Bombay (AIR 1956 SC 51) wherein it was held that a person charged under section 302 read with section 34 for having shared the common intention of four named persons and for having participated in the crime, and the four persons were all acquitted, the element of sharing a common intention with them disappears; and unless it can be proved that he shared a common intention with the actual murder or murders, be cannot be convicted with the aid of section

34. A similar view was taken in another Indian case Babulal Bajpai v. The State (A I R 1959 Cal. 693) wherein one Babulal Bajpai was tried with three others under section 307/34 on the charge in that he committed the offence in common concert with the others, but the co-accused of the appellant were acquitted. It was held that the only participants in the crime were three persons while the two were acquitted it was impossible to hold that Babulal Bajpai could still be convicted under section 307/34. In this case Babulal was charged along with Lachmi Narayan Singh alias Batarua, Ram Chandra Singh alias Ramaiya and Kaloo Khati alias Kaloo Mali. The actual charge under section 307/34 was against Babulal, Batarua and Ramaiya and it was not even suggested that any other unknown person or persons were involved in the commission of the crime of attempted murder and section 34 would mean and imply that persons charged with a particular crime were acting in concert and in furtherance of an intention common to all. That being so, one person could not possibly be convicted of a charge of offence when the others two co-accused were acquitted of it.

8. This case would have presented no difficulty upon the authorities had not the two participants in the commission of the offence been named. If there were some unspecified person or persons as co-accused, the position would have been simple and it could have easily been held that Barkat Ali, appellant, alongwith certain unknown person or persons was responsible for the offence. In this case, however, the position as that here the participants were named. But the most important question would be whether in such a case it is open to the appellate Court to find, there being no Government appeal against the acquittal of Raza Khan, that although it cannot interfere, with such acquittal, of such person having been wrongly acquitted, and had in fact taken part in the commission of the alleged act in associating with the appellant, and on this ground to hold that the appellant was rightly convicted. With regard to this question we consider it necessary to refer to section 423(1)(b). Cr. P. C. which deals with the powers of an Appellate Court in appeal from a conviction, and which runs as follows :

"423.-(1) The Appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the appellant or his pleader, if he appears, and the public prosecutor, if he appears, and, in case of an appeal under section 411-A, subsection (2) or section 417, the accused, if be appears, Court may if it considers that there is no sufficient ground for interfering, dismiss the appeal or may :- (a) . (b) In an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or send for trial, or (2) alter the finding, maintaining the sentence, or, with or without altering the finding reduce the sentence, or, (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence, but, subject to the provisions of section 136, subsection (1) not so as to enhance the same." It would thus appear that it is open to an appellate Court to uphold a conviction not only upon the finding of facts arrived at by the Court below but even after altering the finding of the Court below. The mere omission of the Government to appeal against an order of acquittal does not, in all cases, give finality to such finding and it can be altered by the High Court. There is no limitation imposed upon the powers of the Court to alter any finding so long as it does not involve an enhancement of sentence. It seem to us that alteration means "change in form, without changing the underlying character of the thing to be changed" and in that view there does seem to be, in our opinion, any prohibition upon the Court against alteration of finding of acquittal into one of conviction. It would thus appear that there is nothing to bar an Appellate Court from holding that the acquittal of some of the accused person or persons was wrong, and that they or some or some of them had taken part in the crime in association with the appellant and that, therefore, the conviction of the appellant could be maintained if evidence on record was sufficient to sustain the conviction. We, therefore, can hold that the acquittal of Raza Khan would in no way, alter or change the nature of the offence with which- the appellant is charged and if we are satisfied with the evidence for conviction, we can hold that he is guilty of the offence of murder without the aid of section 34, P. P. C.

9. Reverting to the evidence on record, we find that out of three eye-Witnesses two, namely, Sher Muhammad P. W. 7 and Haya Khan P. W. 8 bad seen the appellant running away from the spot armed with a rifle soon after the occurrence, though they admitted in their cross-examinations that the appellant was seen by them from a distance of 300 and 200 paces respectively. The first witness Sher Muhammad stated that the appellant had wrapped himself in a 'chaddar' by hiding the lower portion of his face, whereas Haya Khan stated that both the accused bad wrapped their bodies with `chaddars' upto their shoulders and they .had their sides towards him. The question which remains is, whether the statements of these two witnesses would establish a case beyond any reasonable doubt against the appellant? We are ourselves in doubt whether such evidence would be sufficient to sustain the conviction of the appellant. It is argued by the learned counsel for the State that these two witnesses have made concessions being co-villagers of the appellant and this part of the evidence should be totally ignored. Be that as it may, the firing of fatal shot has not been seen by any of the eye-witnesses and thus the prosecution case is not free from a reasonable doubt to hold that the appellant was the person who fired the fatal shot, or for that mater fired any shot at the deceased.

10. The motive which the prosecution had revealed at the trial does not find any mention in the first information report in spite of the fact that Sher Muhammad, P. W. 7, stated that be after taking the body of the deceased to his house, received a message from the widow of the deceased to proceed to the police station for making a report, and should also charge Raza Khan and Barkat Ali for the offence; and that this message was conveyed to him through the nephew of the deceased, probably named Aurangzeb. Haya Khan, P. W. 8, stated that he was not aware of any message received by Sher Muhammad, P. W. 7, from the widow of the deceased; and that Sher Muhammad in fact had left for the police post direct from the spot.

11. In a criminal case the burden of proof is always on the prosecution. It is for the prosecution to establish the responsibility of the accused for the' crime alleged. When the evidence on record is conclusive against an accused, we hold that he is guilty. When it is conclusive in favour of an accused, and also it is inconclusive-neither conclusive this way or that in both cases we hold that the accused-appellant is "not guilty" and acquit him.

12. The result of the above discussion is that we find the prosecution case not free from reasonable doubt. Accordingly, we accept this appeal and setting aside the conviction and sentence of the appellant acquit him. He shall be set at liberty forthwith if he is not required in any other case. As the appeal succeeds, the revision-petition for enhancement auto matically fails and is hereby dismissed. M. A. K. Appeal allowed. Revision dismissed.