1987 PLP 86 (SCMR)

To establish the guilt of the accused, the prosecution produced four eye‑witnesses at the trial and also sought corroboration from the abscondence of the three accused. Pir--Mahmood Shah, P.W. 6, who is the eon of Said Badshah deceased, deposed at the trial that on the day of occurrence at about Deegar time there was some quarrel between the minor son of Mian Azam Shah accused and Shaukat, a minor son of Masal Khan, P.W. 7, at which Shaukat was beaten by Mian Azam Shah. Said Badshah deceased made a complaint to Mian Azam Shah in the mosque and some altercation took place between them but the matter was patched up on the intervention of the people present there. After evening prayer time Mian Azam Shah rushed towards his house even without waiting for offering Dowa. The other Namazis, however, offered Dowa and started towards their houses thereafter. Since Said Badshah deceased was an old man, Pordil deceased was giving support to him by holding his hand and they were walking together towards their houses. Pir Mahmood Shah, P.W. 6, along with Hidayatullah, P.W. 9, Tehmidullah, P.W. 10 and Masal Khan, P.W. 7, were following them. When they reached near the house of one Tor Lali the witness saw the three accused armed with Topaks appearing from the front. They started firing as a result of which Said Badshah and Pordil deceased were hit and they fell down on the ground and died. The witness alongwith others took shelter in the Kucha of Toor Dil and escaped unhurt. Amjad Ali Shah, a passerby, was, however, hit. Thereafter, all the three accused decamped. Masal Khan, P.W. 7, is the house tenant of Said Badshah deceased. He also supported the statement of Pir Mahmood Shah, P.W.

6. Hidayatullah, P.W. 9, is the son of the sister of Said Badshah deceased. His statement is also to the same effect as that of Pir Mahmood Shah, P.W. 6, and Tehmidullah P.W.

10. The evidence of Tehmidullah, P.W. 10, is also to similar effect. This witness is also related to the deceased inasmuch as the daughter‑in‑law of the deceased and the wife of Tehmidullah, P. W . 10, are the sisters. The corroborative evidence was furnished by the circumstance of abscondence of the three accused. Badshah Gul, P.W. 16‑‑ a Foot Constable deposed that he was entrusted with the warrants of arrest against the three accused under section 204, Cr.P.C., and he searched for them in their village and the surrounding area but could not find them. He, therefore, returned the warrants un-served. These warrants were formally proved by him at the trial. The same witness effected the service of proclamation issued under section 87, Cr.P.C. against the three accused and deposed at the trial about effecting service through proclamation upon them. When examined, all the accused denied their guilt. They, however, admitted previous enmity. Mian Azam Shah when examined in Court admitted that on the day of the occurrence Shaukat, the minor son of Masal Khan, P.W. 7, had a quarrel with his own son and he gave beating to said Shaukat. He, however, did not admit that Said Badshah deceased complained to him about this incident or that he left the mosque immediately after Namaz without offering Dowa. He denied the fact of main occurrence as well. When asked to explain his abscondence he stated that he had a Seri land where he used to go and live there and that he did not abscond. When questioned as to why he was charged he made the following statement:‑‑ "On the fateful day, I had given beating to the son of Masil P.W. who is the tenant and servant of Mahmood Shah P .W. son of Said Badshah deceased. Mehmood Shah P.W. is a wealthy and influential man, who on learning about my having beaten his tenant's son, collected people and arranged an attack on the houses of my nephews and started firing at them. His father Said Badshah deceased who had taken his evening, meals in his house after the Aftari came out entreating Mehmood Shah and his partisans to give up the attack, met his end by shots fired by Mehmood Shah and his party. Pordil likewise received fatal injury from the hands of Mehmood Shah and his partisans. Amjad Ali who was also attracted to the spot, also got injured. Amjad Ali had not charged me but instead has admitted cross firing at the time of occurrence. I am innocent and falsely charged." Fazal Hussain Shah accused denied his guilt and about his abscondence stated that he had landed property in village Fathma, District Mardan and that he used to live there and did not abscond. The learned trial Judge disbelieved the testimony of all the four eye‑witnesses. As regards the evidence of abscondence he observed that this conduct of abscondence is not sufficient to establish the guilt and acquitted all of them. The reasons for so doing were summed up in these words:‑‑ "In a nutshell, the evidence of interested witnesses out of whom the presence of two eye‑witnesses is doubtful on the spot and the rest belied by medical evidence, the non‑recovery of the blood from the spot, the non‑examination of P.W. Amjad Ali Shah, the presence of the bullets marks at the window and door frames of the house of P.W. Mehmood Shah and keeping it intentionally secret from the investigation and the recording of the F.I.R. after the spot inspection are some of the distinguishing features of this case, which cast high doubts over the prosecution story." On the State appeal, before the High Court the learned Judges of the said Court agreed with the learned trial Judge that the testimony of Masal Khan, P.W. 7, and Hidayatullah, P.W. 9, could not safely be accepted. However, they opined that the evidence of Pir Mehmood Shah, P.W. 6 and Tehmidullah, P.W. 10, could be accepted and further considered that the abscondence of the accused sufficiently corroborated their statements so far as the guilt of Fazal Hussain Shah and Mian Azam Shah was concerned. Shahinshah accused was given the benefit of doubt because in his case the corroborative evidence of absconsion was not fully established. We have heard Mr. Muhammad Sadiq Warraich on behalf of the appellants and Mian Muhammad Ajmal, A . A . ‑G . , N . ‑W . F . P . on behalf of the State and also gone through the record with their assistance. In our opinion the learned Judges of the High Court were not right in interfering with the judgment of the learned trial Court which was founded on a proper appreciation of the evident and of all the relevant circumstances appearing on the record. In fact, the more important reasons given by the trial Court for disbelieving the eye‑witnesses were discarded without any cogent reasons. The finding of the trial Court that the incident had not taken place in the manner deposed to by the prosecution witnesses was evident from the fact that Pir Mehmood Shah, P.W. 6, in his statement had deposed that when the complainant party reached "near the house of one Tor Lali I saw accused Shahinshah and Mian Azam Shah along with accused Fazal Shah armed with Topaks appearing from the front and they started firing at the deceased as a result of which my father Said Badshah and Pordil were hit; they fell on the ground and died there on the spot". However, according to the medical evidence Said Badshah received two fire‑arm wounds on the back of the knee and on the back of the midline of the first lumbar vertebrae. The learned trial Court while disbelieving Pir Mehmood Shah, P.W. 6, and Tehmidullah, P.W. 10, had, inter alia, observed:‑‑ "Both of them are, therefore, not only interested witnesses but their evidence as well as of other two witnesses namely P. Ws. Hidayatullah and Masai Khan whose presence on the spot is doubtful are belied by the medical evidence. According to all the eye‑witnesses, namely, Pir Mehmood Shah, Hidayatullah, Tehmidullah and Masai, they and the deceased were going to their homes when the accused appeared from the opposite direction and started firing at them. But according to the medical evidence, deceased Said Badshah had received injuries from the back. In other words, the occurrence has taken place not in the manner as alleged by the prosecution." This finding of the learned trial Judge was reversed by the High Court in just one short sentence by observing:‑‑ "The mere fact that the injury was not on the front portion of the body of Said Badshah deceased would not discredit the testimony of the two witnesses." We do not think that this was a sufficient treatment of a most important finding of the trial Court, especially in an appeal against acquittal under section 417, Cr. P C On the other hand, we are inclined to agree with the learned trial Court that the occurrence had indeed taken place in a manner different from that deposed to by the P.Ws. and that the eye‑witness could not be relied upon. We would, accordingly, set aside the judgment of the High Court and restore that of the learned trial Court The appellants shall, accordingly, be set at liberty forthwith if not wanted in any other case. M.I. Appeal accepted.