P L D 1993 Peshawar 13 (PLP)

MIAN MUHAMMAD AJMAL KHAN, J.‑‑‑This Criminal Appeal has been filed by Muhammad Zaman and Sher Ahmed against the judgment/order of learned Sessions Judge, Abbottabad dated 13‑3‑1991 whereby both the accused‑appellants have been convicted under section 302/34, P.P.C. and sentenced to suffer life imprisonment with a fine of Rs.20,000 each or in default of payment of fine to suffer further five years' rigorous imprisonment. Each of them was also convicted under section 307/34, P.P.C. and sentenced to ten years' R.I. with a fine of Rs.5,000 each or in default to undergo further one year R.I. Both the sentences were to run concurrently except sentences in lieu of fine and to pay the amount of fine, if realized, to legal heirs of the three deceased and injured complainant by way of compensation.

2. The brief facts of the case are that complainant Muhammad Ilyas in an injured condition on 21‑6‑1985 at 17‑00 hours reported that his brother Shabbir was coming to his house from the house of Mistari Alif Din. When he was passing nearby the house of Siddique Barber, Mushtaq and Wajid sons of Sher Ahmed appeared armed with .12 bore shotgun and pistol respectively, and on seeing him they fired indiscriminately with which he was hit and got injured. Thereafter, they dragged him towards their house. On hearing the firing the complainant, Mehboob Shah son of Ghazan Shah and Waris brother of complainant rushed towards the spot. They were also fired upon by Mushtaq, Wajid son of Sher Ahmed, Sher Ahmed, and Muhammad Zaman who were armed with shotgun and pistols with which' the complainant also sustained injuries on the left arm, right knee and on the back. His companions Mehboob Shah and Waris were also hit with the fire‑shots and got injured. The motive as disclosed was a quarrel between the son of Alif Din Mistari and the accused party a year ago in which the complainant party supported the son of Mistari Alif Din. The occurrence was witnessed by Alif Din Mistari, Farooq Shah son of Akbar Shah and many others. According to complainant he and Mehboob Shah were brought by the people while Shabbir and Waris Khan were lying there in an injured condition. His report was recorded in the shape of Murasila and was sent to the Police Station, Havelian where the same was incorporated in the F.I.R. Exh. PA. At 2‑30 hours Zahir Shah ASI informed HC Moharrir Police Station about the death of Waris Khan and Shabbir. He conducted investigation and arrested appellants. After completion of investigation complete challan was submitted in the Court of Sessions Judge, Abbottabad against the accused to face the trial. The accused pleaded not guilty and claimed trial. The prosecution produced 16 witnesses, thereafter, the accused‑appellants were examined under section 342, Cr.P.C. Both the accused‑appellants stated that the weapons of offence were not recovered from them but in fact the same were produced by Said Bar father of complainant who deals in illicit arms. They further stated that they have been implicated in the case due to the previous enmity. The learned trial Court recorded the conviction and sentences on the accused appellants as stated above which is impugned herein.

3. Dr. Jumma Khan, Medical Officer R.H.C. Havelian, on 22‑6‑1985 at 7‑30 a.m. conducted autopsy on the dead body of the deceased Shabbir Khan and found the following:‑‑ EXTERNAL EXAMINATION: (1) Gun‑shot wound 3" x 2" on left side front of the chest 3" below the middle of left clavical and 5" from the mid line with fracture of under line ribs. The central aperture is surrounded by a number of separate entrances. The surrounding skin is tattooed. (2) Abrasions 1/2" x 1/4" on the lateral side of left leg 6" above the ankle joint. (3) Extensive abrasions occupying the entire left side back of the chest. (4) Abrasions 2" x 1" on the front of right knee joint. INTERNAL EXAMINATION: Thorax walls, ribs and cartlages were injured at the level of injuries. Pleaure, left lung, pericardium, heart were also found injured. Third and fourth ribs on the left side found fractured. Injury No.l was by firearm while the rest by blunt weapons. In the opinion of doctor the death occurred due to haemorrhage, shock and damage to the vital organs. ‑The time, between the injuries and death was about 1 to 3 minutes and between death and post mortem about 12 to 24 hours. According to doctor injury No.l was sufficient in the ordinary course of nature to cause death. The same doctor also performed the autopsy on the dead body of Waris Khan on the same day and found the following:‑‑ On External Examination: ' (1) One entrance wound 1" x 1" placed in the middle of front of the chest 3" above the apex of the chest bone which was fractured and the surrounding area was scorched, backened and tattooed. (2) Nine entrance wounds, four 1/2" x 1/4" and five 1/4" x 1/4" with scorched margins over an area of 6" x 5" occupying the lateral and front of the right thigh and the right hip joint. (3) Gutter 3" x 1/2" on the left side front of the abdomen, 3" from the umblicus, 3 pellets were removed from the front of the abdominal wall adjacent to the injuries. (4) Six exit wounds' 1/2" x 1/4" on the left side back of the chest, just below the left shoulder of bladder over an area of 5" x 4". One side pellet was recovered from this side and underline ribs were fractured. (5) Entrance wound 1/2" x 1/4" with scorched margins on the medial side right upper arm, 4" above the elbow joint. (6) Exit wound 1/2" x 1/4" on the same side of the same arm, 1" below injury No.5. (7) Entrance wound 1/2" x 1/4" with scorched margins on the left side front of the neck, 3" from the mid line and 3" above the medial 3rd of the left clavical. (8) Entrance wound 1/2" x 1/4" just below the right lateral end of lower lips. (9) Gutter 1/2" x 1/4" x 1/10" and 1/4" x 1/4" x 1/10" placed respectively on the right cheek and the lateral and of the right eye‑brow. (10) Multiple abrasions over an area of 6" x 2" of the right side back of the chest. Below the right interior angle of the shoulder bladder. (11) Multiple abrasions over an area of 7" x 3" on the left shoulder‑joint and the left side back of the neck. (12) Multiple abrasions over an area of 6" x 3" on the right shoulder‑joint and the back of the right side neck. (13) Multiple abrasions over an area of 10" x 10" on the front of the right knee‑joint. (14) Abrasions 1" x 1/2" on the front of the left knee‑joint. (15) Abrasions 1" x 4" on the front of left leg, 4" above the ankle‑joint. (16) Abrasions 2" x 1" on the medial right e: bow‑joint. (17) Mutiple abrasions over an area of 4" x 1" on the back of the right forearm. (18) Multiple abrasions over an area of 3" x 2" on the back of right thigh, 4" above knee‑joint. (19) Abrasions 1/2" x 1/4" on the left back leg, 6" below the knee‑joint. Internal Examination: Thorax walls, ribs and cartilages were injured at the level of the injuries. Pleaurae, left lung, pericardium and heart were found injured at the level of injuries. Injuries Nos. 1 to 9 were caused by fire‑arm and the rest by blunt means. Injuries 1 to 9 were sufficient to cause the death in the ordinary course of nature. Probable time between injuries and death was about 1/2 to three minutes and between death and post‑mortem about 12 to 24 hours. The same doctor also examined Muhammad Ilyas son of Sadbar Khan aged about 18/20 years, on 21‑6‑1985 at 6‑45 p.m. and found the following injuries on his person:‑‑ (1) Three entrance wounds each about 1/4" x 1/4" with scorched margins placed on the front of left elbow‑joint and the left forearm over an area of 2" x 1". (2) Exit wound 1/4" x 1/4" over the lateral side of the left elbow‑joint. (3) Two, exit wounds each 1/4" x 1/4" on the lateral side left forearm 2" below the elbow‑joint. (4) Three entrance wounds each about 1/4" x 1/4" with scorched margins over an area of 2" x 1/2" on the medial side of left forearm 4" above the wrist‑joint. (5) Three exit wounds each about 1/4" x 1/4" over an area of 2" x 1" on the back of the same arm, 4" above the wrist‑joint. (6) Seven entrance wounds each about 1/4" x 1/4" with scorched margins over an area of 6" x 5" on the left side back of the chest. Horizontally 2" from the left interior angle of the left shoulder bladder and medially 2" from the mid line. (7) Entrance wound 1/4" x 1/4" on the front of the right thigh, 1" from the knee‑joint. In the opinion of the doctor the injuries were caused by firearm. The result of injuries 1 to 5 was kept after X‑Ray while injury No.6 was grievous in nature and injury No.7 was simple. Probable time was fresh. He also examined Abdul Wajid son of Sher Ahmed on 22‑6‑1985 at 2‑45 a.m. and found the following injuries on his person:‑‑ (1) Abrasions 1/4" x 1/4" with Hale ring margins over a contusion, 1" x 1/4" on the left side back of the chest, 1‑1/4" below the interior angle of the left shoulder bladder and 4" from the mid line. (2) Abrasions 1/4" x 1/,10" on the left lumber regions, 1‑1/2" from the midline. (3) Abrasion 1" x 1/10" on the left lumber region, 4" below the castle margins and 4" from the midline. Injury No. (sic) was caused with fire‑arm and the rest by blunt means.

4. Dr. Perveez Akbar Khan Medical Officer, District Headquarter Hospital, Abbottabad conducted the post‑mortem examination of the dead body of Mehboob Shah s/o Ghazan Shah on 23‑6‑1985 at 10‑00 a.m. and found the following:‑‑ External examination: (1) Firearm grazed wound on the top of left shoulder, 2" x 1/4" skin deep (2) Firearm entry wound on the front of chest 3" above the left nipple, 1/4" x 1/4". Firearm exit wound in the left scapulary region 1/2" x 1/2" in the same level. (3) Firearm entry wound on the front of chest in the supera strenal notch 1/4" x 1/4". Internal examination. Anterior 3rd left inter costal and posterior 5th left inter costal muscles, left plaureae, lyranx and trachae, left lung; left pulmonary blood vessels, oesophagus were found injured. The death in his opinion was caused due to injury to left lung, trachae and oesophagus. The probable time between injuries and death was about 38 to 40 hours and between death and post mortem 1‑1/2 hours.

5. Zahir Shah ASI (P.W.16) conducted investigation in the case. He recorded Murasila Exh. PA/1 in RHC Havelian which was sent to the Police Station Havelian where it was incorporated into FIR Exh. PA. He prepared injury sheets in respect of Ilyas (Exh.P.W.16/1), in respect of Mehboob Shah injured (Exh.P.W.16/2),in respect of Shabbir (Exh.P.W.16/3) and in respect of Waris Khan (Exh.P.W. 16/4). He also prepared inquest reports in respect of Waris Khan deceased (Exh. P.W. 16/5), Shabbir Khan deceased (Exh. P.W.16/6). He arrested Abdul Wajid accused from his house alongwith .12 bore shotgun and three cartridges and all these articles were taken into possession vide recovery memo. Exh. P.W.3/2. Muhammad Zaman accused was also arrested by him. He also took into possession licence No.6619 produced by Said Ahmed vide recovery memo. Exh. P.W. 16/8. He also recovered from the spot empties Exhs.P.26, P.27, P.28, P.29, P.30, P.31 and P.32 vide recovery memo. Exh. P.W.11/1. He recovered from the spot blood stained earth Exh.P33, pebbles and earth from point No.4 (Exh.P36). He also took into possession one shirt Exh.Pl, one jacket Exh.P

2. He also recovered shotgun Exh.P3, 3 cartridges Exh.P4 and licence Exh.P5 in presence of marginal witnesses. He also recovered shotgun Ex.P.W.3/4 from Abdul Wajid accused alongwith one cartridge Exh.P7 and 3 other cartridges Exh.P8 in presence of marginal witnesses. He also recovered revolver Exh.P26 on the pointation of Abdul Wajid accused. He produced the accused before the Magistrate for confession but no confession was made.

6. Bakhtiar Ahmed ASI (P.W.1) incorporated the Murasila Exh.PA/1 into FIR Exh.PA. Imtiaz Khan ASI (P.W.3) is marginal witness of recovery memos. Exh.P.W.3/1, Exh.P.W.3/2, Exh.P.W.3/3 and Exh.P.W.3/4. Farid Muhammad F.C. No.695 (P.W.4) brought sealed bottles Exh.P9 containing pellets Exh.P10, Namda‑. Exh.P 11 and cardboard Exh.P.12 alongwith shirt Exh.P.13, jacket Exh.P.14 of Shabbii Khan deceased alongwith sealed bottle Exh.P.15 containing pellets, shirt Exh.P.16, Shalwar, Exh.P.17, jacket Exh.P.18 of Waris Khan deceased, a sealed bottle Exh.P.19, containing pellets etc., jacket Exh.P.20, shirt Exh.P.21, Shalwar Exh.P.22 of Muhammad Ilyas, shirt Exh.P.23, banyan Exh.P.24, of Mehboob Shah and produced them before the Investigating Officer who took them into possession and sealed into parcel vide memo: Exh.P.W. 4/1. Abdul Latif IHCPS Cantt., Abbottabad prepared the inquest report of S. Mehboob Shah Exh.P.W.2/2. Abdul Sattar FC No.473 (P.W.7) is marginal witness to recovery memo. Exh.P.W.7/1. Malik Aman S.I. (P.W.8) obtained warrant of arrest in respect of Mushtaq accused and applied for proceedings under section 87, Cr.P.C. He sent the blood‑stained clothes vide Exh. P.W.8/4 to the Chemical Examiner for his report. Likewise he despatched the empties recovered in this vide Exh. P.W.8/5 to the Arms Expert and the report received is Exh.P.W.8/6. Muhammad Nazir (P.W.9) is marginal witness to recovery memo. Exh.P.W.3/1. Hussain Khan son of Hasham Ali (P.W.11) is marginal witness‑to recovery memos. Exh. (P.W.11/1, Exh.P.W.11/2, Exh.P.W.ll/3. Muhammad Irshad FC No.57 (P.W.12) is marginal witness to recovery memo. Exh.P.W. 7/1. Muhammad Ilyas complainant (P.W.13) reiterated the story as narrated in the Murasila and charged the accused‑appellants for murder of his brother Shabbir, Waris and one Mehboob Shah and for injuring him. Alif Din son of Umar Din (P.W.14) supported the version given by Muhammad Ilyas in his report. Farooq Shah son of Ghazan Shah (P.W.15) also supported the version given by Muhammad Ilyas in his report.

7. Learned counsel for the appellants highlighted the discrepancies and contradictions in the ocular evidence vis‑a‑vis the medical evidence. He referred to the statement of Farooq Shah P.W.15, who in the cross examination had admitted that he pointed out the distances at the time of the preparation of the site plan. He stated that Shabbir and Waris Khan deceased were fired at by the assailants from a distance of 10/15 paces while Ilyas and Mehboob Shah were fired at from a distance of 15/20 paces. The medical report of the deceased and the injured show scorching margins around the entrance wounds which are only possible from a distance of 1 to 3 feet, whereas in the instant case the distance between the accused and the victims comes from 25 to 45 feet in which event the scorching around the wound is not at all possible. He also referred to the site plan and pointed out that the distance between Shabbir deceased and Mushtaq accused since dead i.e. points 1 and 5 is 10 paces, between Shabbir and Wajid absconding accused i.e. points 1 and 6 is 20 paces, between Shabbir and Sher Ahmed appellant i.e. points 1 and 7 is 25 paces and between Shabbir and Muhammad Zaman appellant i.e. points 1 and 8 is 26 paces. While the distance between Waris Khan deceased and Mushtaq i.e. points 2 and 5 is 6 paces, between Waris Khan and Wajid i.e. points 2 and 7 is 18 paces, between Waris Khan and Muhammad Zaman i.e. points 2 and 8 is 18 paces, likewise distance between point 3 Ilyas injured complainant) 5 to 7 paces, points 3 and 6 is 18 paces, 3 and 7 is 26 paces and 3 to 8 is 23 paces. The distances between point No.4 (Mehboob Shah) deceased are almost similar to point No.3. The distances as given in the site plan are almost similar and correspond to the distances as given by the eye‑witnesses. It has further been admitted by the P.W.14 Alif Din and P.W.15 Farooq shah that the site plan was prepared at their instance. Alif Din P.W. 14 in his cross‑examination deposed that Shabbir was fired at from a distance of 13/14 paces while Waris Khan from a distance of 4/5 yards and Mehboob Shah and 11yas were fired at from a distance of 24/25 paces. According to N.J.Modi "if a firearm like shotgun is discharged from a distance of not more than 3 feet and a revolver or pistol discharged within about 2 feet, then it will cause blackening. Scorching in the case of the latter firearm is observed within a few inches, while some evidence of scorching in the case of shotgun may be found even at 1 to 3 feet". Therefore, testing the evidence at the touchstone of the aforesaid criterion it would be found that the eye version given by the witnesses is not compatible to medical evidence and does not fit in the framework of the aforesaid criteria hence there arises a serious doubt in the case, the benefit whereof has to be given to the appellants. It was further contended that shotgun No.39467 was recovered from the house of Abdul Wajid while another shotgun No.93935 was recovered from the house of Muhammad Zaman and one .32 bore revolver No.FF 50111 was recovered on the pointation of Abdul Wajid from his house which was produced by his mother. Seven .12 bore crime empties matched with the shotgun No.39467 while two crime empties matched with the shotgun No.93935 while one crime empty did not match with either of the shotguns which would indicate that besides the two shotguns another shotgun was also used which was neither recovered nor referred to by the eye‑witnesses. This would also create doubt in the prosecution case. He argued that accused Sher Ahmed who is aged about 70/72 years according to the site plan, was at point N'o.7 which is on the roof, while he has been attributed firing from the courtyard by the eye‑witness P.W.13 Muhammad Ilyas in the cross‑examination has categorically stated that no firing was made from the roof although a .12 bore empty from point D which is adjacent to point No.7, has been recovered. He submitted that the finding of guilt against the accused cannot be based on probabilities but should rest surely on the evidence. Since prosecution case is not free from doubts, therefore, the benefit of doubt arising on any material point must be given to the accused.

8. On the other hand the learned counsel for the complainant submitted that the occurrence has taken place in the broad daylight and the assailants were correctly identified by the eye‑witnesses. Injuries on P.W.13 Muhammad Ilyas are proof of his presence at the spot and his relationship with the deceased would not make his account blemish. He submitted that the discrepancies in giving the distance between the accused and the victims are not of any significance and they can be overlooked as it cannot be expected that the eye‑witnesses would give actual distances. He referred to certain authorities wherein it has been held that the minor discrepancies in the prosecution case are inevitable as every body has his own way to narrate about the events. He supported the judgment/order of the learned Sessions Judge and submitted that the learned trial Court after thorough appreciation of evidence has rightly convicted the appellants.

9. The learned Assistant Advocate‑General almost adopted the arguments of the learned counsel for the complainant and supported the conviction of the appellants.

10. We have heard the learned counsel for the parties and have gone through the record of the case. We tend to agree with the contentions of the learned counsel for the appellants. The moot point in the case is whether the ocular evidence is consistent and compatible with the medical evidence. From the ocular, evidence on the record it is established that the site plan was prepared at the instance of the two eye‑witnesses i.e. P.W.14 Alif Din and P.W.15 Farooq Shah who in their deposition before the Court have also admitted that the same was prepared at their instance. The distances given in the site plan mostly correspond to the distances given in their Court statements. The range from which the firing has taken place vis‑a‑vis the medical evidence we find them incompatible with each other. Most of the injuries sustained by the deceased had scorched margins which are not possible if the firing has been done from the distances as given by the P.Ws. Since the scorching or blackening can only be possible if the victim is fired at from a distance of 1 to 3 feet, but in the instant case the distances come to 25 to 45 feet. As the ocular evidence is highly inconsistent with the medical evidence, therefore, reasonable doubt arises in the mind of Court, the benefit of which has to be given to the appellants.

11. According to the Arms Expert's report one .12 bore crime empty recovered from the spot was not found to have been fired by the two shotguns recovered from the accused which would show that besides the two recovered shotguns one another shotgun has been used which has not been recovered. Absconding accused Wajid is stated to have two weapons but as he is not before us, therefore, we would refrain to comment on his role.

12. We are not convinced by the motive set up by the prosecution. Such an incident which has claimed three lives may not have been committed on a far fetched and inadequate motive which has no direct bearing and does not provide a cause to nourish grudge, the actual motive seems obscure and shrouded in mystery.

13. Since there are reasonable doubts created in the prosecution version, therefore, by allowing the benefit of doubt to the appellants we would accept this appeal, set aside the conviction and sentences of the appellants and acquit them of the charges. They should be set at liberty forthwith if not required in any other case. N.H.Q./1415/P Appeal allowed.