1995 PLP 526 (MLD)

(1) An oval entrance wound with black margin 1/2" in diameter dorsum of left forearm 3 inches above the left wrist‑joint with an exit wound on the ventral aspect of left forearm 1‑1/2" above the left wrist‑joint, irregular, in size 2" x 3" with fracture of left radious. (2) An oval wound in left hyphecondrium size 2" x 2", five inches above the umbilicus with bowl emerging through the wound. Internal Examination: Thorax.‑‑‑Plurae, blood vessel injured. Abdomen.‑‑‑Walls, peritonium, stomach, pancreas, small and large intestines and liver injured. Stomach and its contents injured. Abdominal cavity full of blood. On the same day the said Doctor also conducted post‑mortem examination on the dead body of Wazir, Muhammad deceased at 4‑30 p.m. and found the following:‑‑‑ "External Examination: (1) An inlet wound in the left hyphocondrium 1/2" x 1/3" in size with charring marks, five inches above the umblicus, with corresponding holes in the left pocket. (2) A haematoma on back right side 8 inches above the aliac crest. Internal Examination: Thorax.‑‑‑Healthy. Abdomen.‑‑‑Walls, peritonium, diaphragm, stomach, phancreas, small and large antestines, liver, right kidney injured. Stomach and its contents full of blood."

5. P.W.7, Dr. Abdul Ahad, who confirmed the post‑mortem conducted by late Dr. Asfandyar in his cross‑examination stated that there was one entrance wound on the person of the deceased Wazir Muhammad and two entrance wounds on the person of deceased Pir Muhammad.

6. At the trial the accused denied the charge against them saying that they are innocent and falsely charged. They did not produce any evidence in defence.

7. We have heard the learned counsel for the parties at great length and gone through the prosecution evidence with their assistance thoroughly.

8. It is clear from the evidence on record that the 3 accused are alleged to have fired from a very close range at the complainant party. The prosecution case is that all the 3 accused had fired at them, however, the two deceased suffered fatal injuries, while P.W. Daulat Khan and Aman Khan escaped unhurt. P.W. Daulat Khan stated that the accused had fired 4 or 5 shots at them. Now 3 accused are charged for committing the offence and it is the case of the prosecution that each of the accused had fired from their 5 shots rifle (7mm). However, according to the medical evidence there were found only two entrance wounds on the person of Pir Muhammad deceased and one entrance wound was found on the person of Wazir Muhammad deceased. Wound No.l on the person of Wazir Muhammad deceased was having black margin 1/2" in diameter and one entrance wound with charring marks. The site plan shows the distance between Points Nos.l and 5, the place of the deceased, where he was hit and the place of Sabz Ali appellant is 7‑1/2 feet. The distance between the place of the deceased and place of Ashraf Khan appellant is shown as 12 feet and between points Nos.l and 7 is 22 feet. In such circumstances how the charring can be caused on wound No.l (black margin) on the person of Pir Muhammad and blackening on the single entrance wound on the person of Wazir Muhammad, when the assailants are not within the charring/blackening range, which are caused from a distance of 6 to 9 inches if the weapon is rifle or pistol. It is in evidence that the appellants were armed with rifles, therefore, the medical evidence is in conflict with the ocular evidence. Again if they had fired 4/5 shots at the deceased, large number of entrance wounds would have been found on the person of deceased while firing from such a close range. Thus, the medical evidence contradicts the testimony of sole P.W. Daulat Khan. The case of prosecution against the two accused is belied from another angle also. The complainant Daulat Khan has claimed that the accused had also fired on them but they escaped unhurt. According to the site plan the P.W. Daulat Khan and Aman Khan were close to the accused in the course of firing, therefore, one wonders, as to how the firing of the accused missed them. Moreover, the dead body of Pir Muhammad deceased was lying at Point No. 1 as shown in the site plan and that of the deceased Wazir Muhammad is shown at Point No.2, but no blood was found from these two points, which casts doubt that they were not fired at that place. It is also in evidence that only one empty of /mm was found on Point No.5, although it is alleged that 4/5 shots were fired. A question arises as to why only one empty was recovered from the spot. This leads to the conclusion that P.W. Daulat Khan was not present on the spot at the time of occurrence and when he came to know about the occurrence, he charged the accused after consultations and deliberations. In this view, we are fortified by the reference to evidence on record. The occurrence is alleged to have taken place at 11‑00 a.m. on 17‑6‑1984 and the report was made at Police Post Jehangira at 14‑00 hours the same day. The distance between the place of occurrence and Police Post is shown as 3/4 Kilometres. The dead bodies of the two deceased were taken in Datsun pick‑up, therefore, at the most one hour should have taken in lodging the report in question, at the Police Post distant 3/4 Kilometres. But it has been delayed for 2 hours. No explanation is forthcoming in this behalf from the prosecution, which shows that the occurrence has gone un-witnessed. It is also in evidence that people were attracted to the spot immediately after the occurrence, but not a single person was produced to throw light on the occurrence. It is also in evidence that one Muhammad Jan shepherd took the sheep of the complainant party from the spot after the occurrence and was grazing them for three days, but he too was not produced by the prosecution to say a word about the occurrence. The name of Aman Khan is mentioned in the F.I.R. as a witness having seen the occurrence. He too was abandoned. Had he been produced, he would have spoken differently and for that matter would not have supported the prosecution case. The occurrence had taken place allegedly because the sheep of the complainant party had entered the crop of accused Sabz Ali and caused damage to his sugarcane crop. The prosecution case is that the field of Sabz Ali appellant was shown to the I.O. but the I.O. denied this fact. This means that the sheep of complainant party had not entered the field of Sabz Ali. Had the sheep actually been entered the field of Sabz Ali the I.O. would have noted the damage caused to the crop of Sabz Ali accused‑‑appellant. The complainant also admitted that only on the day of occurrence he had accompanied the two deceased brothers for grazing the sheep and before that he had never accompanied them. An adverse inference can be drawn against him that he was attempting to show himself a chance witness, but his evidence is lacking corroboration, which cannot be relied upon. By scrutiny of the evidence of sole witness Daulat Khan complainant, we have not been able to find corroboration from any angle, because he being the brother of the two deceased is closely related to them and it is necessary that his testimony should be above board and it should be of unimpeachable character from every angle, which is lacking in this case. Besides it, the dead bodies of Pir Muhammad and Wazir Muhammad deceased were brought to the Police Post at 10‑00 a.m. and the post‑mortern examination on the dead body of Pir Muhammad deceased was conducted at 1‑00 p.m. while the autopsy on the dead body of Wazir Muhammad deceased was conducted at 4‑30 p.m. but according to the statement of the complainant, which he made before the trial Court, he lodged the report at 2‑45 p.m. The narration of the above facts would show that the complainant being chance witness has not seen the occurrence but later on when informed about the occurrence he cooked up a story which does not fit in the circumstances of the case and that is why inordinate delay of about p 2 hours was caused. We are further of the opinion that the net was so widened by the prosecution so as to charge all members of the family. We also feel that the occurrence has not taken place in the manner as alleged by the prosecution.

9. Now there remains abscondence of the accused. It is settled law that unless abscondence is corroborated by other evidence of reliable character legally it will have no evidentiary value. In support of this view we would refer to an authority reported as 1986 SCMR 823, in which it is held that:‑‑‑ "Mere abscondence would not be enough to sustain conviction of the accused‑respondents:"

10. As a result of the foregoing discussion this appeal succeeds. Consequently it is accepted, the conviction and sentences of the appellants are set aside and they are set at liberty forthwith if not required in any other case. The revision petition for the enhancement of the sentences of the appellants ipso facto fails and is rejected.

11. It may be noted that this judgment will have no effect on the case of absconding accused Muslim Khan, when he is arrested and put to trial.

12. By our earlier short order we accepted the appeal and acquitted the accused‑appellants and the above are the reasons for the said order. N.H.Q./1677/P Appeal accepted.