1990 P Cr (PLP)

Toppaks reached there and immediately on arrival Sher Azam Shah directed his sons to kill; whereupon Faridullah Shah accused‑appellant fired at Said Rahim Shah and Muhammad Iqbal Shah accused‑appellant fired a shot at Said Nazim Shah with which both of them wore hit and fell down to the ground. The other companions of the two accused fired at them namely Pir Badshah and Said Nawaz Shah which, however, proved ineffective. After some more fire‑shots, Pir Badshah and Said Nawaz Shah raised alarm. All the accused ran from the spot. When they approached Said Rahim Shah and Said Nazim Shah, both of them had expired. Many people of the village gathered on the spot, lifted the dead bodies of the two deceased, brought them to the police station where Pir Badshah lodged the report which was recorded by way of F.I.R. No.59 of Police Station Mandan which is (Exh.P.A.) by Yar Beg Khan S.H.O. (P.W.11).

3. After recording the report, the S.H.O. prepared the injury sheets and inquest reports of the two deceased and despatched the dead bodies to the Civil Hospital, Bannu for post‑mortem examination. He also recorded the report of Muhammad Iqbal Shah accused‑appellant. Since he too had injuries on his person, after preparing his injury sheet, he was also sent to the Civil Hospital for medical examination and treatment. The S.H.O. thereafter left for the spot. He was accosted by Faridullah Shah accused‑appellant who too was injured. He prepared his injury sheet and also sent him to the hospital for medical examination and treatment. The Investigating Officer then inspected the spot and prepared the site plan (Exh.P.B.) at the instance of Pir Badshah P W. in the presence of Gul Muhammad, an elder of the village. From the spot, he took into possession blood‑stained earth from the places of Said Rahim Shah and Said Nazim Shah deceased vide memos. (Exh.P.C.) and (Exh.P.D.) respectively. Ile recorded the statement of Said Nawaz Shah P.W. and the supplementary statement of Pir Badshah P.W. Both Faridullah Shah and Muhammad lqbal Shah were formally arrested on the same day while Darya Shah acquitted accused was arrested by him on 27‑3‑1984. Sher Azam acquitted accused was arrested on 15‑4‑1984; Muhammad Sehat Shah alias Sehatti acquitted accused on 21‑8‑1984 and Umer Hayat Shah acquitted accused also on 21‑8‑1984. After completion of the investigation, challan was put in Court of learned Sessions Judge, Bannu.

4. Post‑mortem examination on the dead body of Said Nazim Shah deceased was performed by Dr. Gulzar Muhammad Khan (P.W.10) on 26‑3‑1984 and on external examination the following injuries were found on his person:‑‑ (1) One fire‑arm inlet wound 1/4" x 1/4" x 1" to the right of Thyroid. (2) One fire‑arm outlet wound 1" x 1" x 1" on right to the 12th Thoracic vertebrae. On internal examination vertebrae, spinal cord, membrane, thorax, pleaurae, trachea, right lung pericaridium, heart and the major blood vessels were all found injured. 10th, 11th and 12th thoracic vertebrae were found fractured. In the opinion of the doctor, the injuries have been caused as a result of fire‑shots causing damage to the vital organs. Death in the opinion of the doctor was the result of injuries to the vital organs, haemorrhage and shock. Death according to the doctor had occurred instantaneously or within one hour while the time between death and post‑mortem was two to six hours.

5. The same doctor also performed autopsy on the dead body of Said Rahim Shah deceased and on external examination, located the following injuries: ‑‑ (1) One fire‑arm inlet wound 1/2" x 1/2" x 1" below a mid‑of left clavical. (2) One fire‑arm outlet wound 1" x 1" x 2" below the lower end of right scapulae. On internal examination, walls, ribs, cartilages, pleaurae, right lung, left lung, pericardium, heart and major blood vessels were all found injured. Death in the opinion of the doctor had occurred instantaneously as a result of injuries to the vital organs, haemorrhage and shock while time between death and post‑mortem examination was two to six hours.

6. The prosecution with a view to establish its case, examined as many as twelve (IZ) witnesses. The accused when examined alleged false implication and claimed complete innocence. At the conclusion of the trial, the learned Sessions Judge convicted accused‑appellants Faridullah Shah and Muhammad lqbal Shah for the murders of the two deceased and sentenced them each on two counts under section 302/34, P.P.C. as said before while acquitted the other four (4) accused hence the two appeals; one by convict‑appellants, the other by the State against acquittal of the four (4) and the criminal revision petition for enhancement of the sentences of the convict‑appellants by the complainant party.

7. We have heard the arguments of Mr. Zahoorul Haq, Advocate on behalf of the convict‑appellants in Criminal Appeal No.12 of 1987, Mr. Muhammad Khan Khakwani Special State Counsel on behalf of the State‑appellant in Criminal Appeal No.8 of 1988 and Syed Zafar Abbas Zaidi, Advocate for the complainant party in Criminal Revision No.l of 1988. We have also carefully scrutinised the entire record brought forth before us.

8. In order to bring home guilt of the accused‑appellants, the prosecution examined Said Pir Badshah (P.W.7) and Said Nawaz Shah (P.W.8) as the witnesses of the occurrence. Said Pir Badshah (P.W.7) is the nephew of the two deceased as also of Said Nawaz Shah (P.W.8). Said Nawaz Shah (P.W.8) is the real brother of the two deceased. The evidence of a relative witness no doubt is as much credible as that of a disinterested person but the statements of such witnesses are always given credence after they find corroboration and support from the other circumstances and are consistent inter se, particularly in the absence of a strong motive to create suspicion in the mind of a prudent man that due to the enmity deceased party might have brought charge against the accused persons on suspicion. In the instant case in the F.I.R., no motive has been ascribed for the commission of the murder of the two brothers by the accused party except a dispute over plucking of a guava fruit from the guava garden of the accused party by a child of the deceased party whereupon the accused had allegedly beaten that child and the deceased party in turn had abused Faridullah accused‑appellant for having beaten their child. Assuming for the sake of arguments that this beating motive could not serve the graver cause for the commission of heinous offence, at the same time it by itself does not render the statements of the prosecution witnesses as credible because the absence of a strong motive by itself is not a positive circumstance for believing the testimony of a person appearing as a witness otherwise closely related and interested in the success of the prosecution case which he establishes at the initial stage. 1n this connection reliance may be placed on the observations of their Lordships reported in 1984 S C M R 230 wherein it was held 'mere absence of enmity against witness....held riot sufficient to bring home charge of murder if evidence of such witness is found to be inherently unbelievable. We have to see whether the statements of the two closely related witnesses of the deceased find corroboration and stand the test of truthfulness. First of all the two P.Ws. claim their presence in the fields at the crucial moment alongwith the two deceased for weeding the, Tinda crop which had earlier been sown. Although it has also come in the evidence that the purpose of their presence in the field at that time was sowing of the Tinda crops which version was improved upon at a subsequent stage by introducing the version of weeding the sown Tinda crop which by itself is an improvement but even if we believe the story advanced by the two witnesses that they alongwith the two deceased had gone to the field for weeding the Tinda crop, their this version is totally belied by the evidence of Muhammad Younas (P.W.3) who categorically denied the existence of any Tinda crop sown. On the other hand according to this witness, clover crop had been sown in six Kanals ten Marlas while the remaining eight Kanals seven Marlas had been ploughed for cultivating the vegetable i.e. Tinda. Thus, the mere purpose of presence of these two witnesses at the relevant time alongwith the two deceased in the light of statement of this P.W. becomes doubtful. Noor Muhammad Khan A.S.I. (P.W.6) had accompanied the Investigating Officer to the spot at the time of spot inspection. Except for the blood‑stained earth from the two places where the two deceased were done to death, no other incriminating articles such as husbandry tools or any other instrument of ploughing or weeding was recovered from the spot to lend support to the version of these witnesses regarding their presence on the spot. Pir. Badshah (P.W.7) deposed at the trial that Faridullah Shah and Muhammad Iqbal Shah accused‑appellants were armed with five shot rifles, Darya Shah and Umer Hayat Shah accused‑respondents were armed with shotguns while the other two accused‑respondents namely Sehat Shah and Sher Azam were armed with SB shotguns. According to him, in all 10‑12 Shots had been fired by the accused party. He has been contradicted on this point by Said Nawaz Shah (P.W.8) who stated that Faridullah Shan and Muhammad Iqbal Shah accused' appellants were armed with five shot rifles while out of the four (4) accused‑respondents, two were armed with rifles and two with shotguns. He expressed his inability to explain which of the two accused‑respondent were armed with shotguns and which of them were so armed with rifles. According to this witness in all 13/14 shots had been fired. In his supplementary statement before the D.S.P., he had, however, given the number of shots fired by the accused party as 15‑

20. One may argue that in a situation where there is volley of fires, the actual count of the shots fired may not be possible for a truthful witness to agitate but what materially figures is that no pellets, bullets, empty shells, cardboard discs or wads had been recovered from the spot by the Investigating Officer at the time of the Spot inspection. It is the prosecution case that when the accused arrived at the spot Sher Azam accused‑respondent raised Lalkara and asked his sons, two accused‑appellants and three accused‑respondents to kill. The site plan prepared at the instance of the prosecution witnesses, denotes‑ the presence of Sher Azam accused‑respondent at point No.10 which is at a distance of 176 paces from points Nos. 1 and 4 which are the places of presence of Pir Badshah and Said Nawaz Shah P.Ws. respectively. This Sher Azam accused respondent is a man of more than 70 years of age and one fails to understand how a man of that age giving Lalkara was heard by the two P.Ws. from that distance. Accused‑respondent Darya Shah is shown at point No.7, Muhammad Sehat Shah at point No.8 and Umer Hayat Shah at point No.9 which are 170, 172 and 174 paces from points Nos. 1 and 4, the alleged places of presence of the two P.Ws. Points Nos. 5 and 6 are the places of Faridullah Shah and Muhammad Iqbal Shah accused‑appellants which are 117 and 80 paces respectively from points Nos. 1 and

4. At points Nos. 11 and 12, there were mulberry trees which are located in Khasra No.125 and in this Khasra number at point Nos.2, Said Rahim Shah deceased was done to death. These points arc quite near to point No.2 and the perusal of the site plan indicates that marks of bullets were present on both these trees in the line of firing. It is the prosecution case that Said Rahim Shah deceased met his death as a result of fire shot by Faridullah Shah accused appellant. It is also the prosecution case that Faridullah Shah had fired only one shot. The presence of the bullet marks on the two trees makes the prosecution case doubtful with regard to the one shot fired by the accused‑appellant Faridullah Shah at the deceased because it practically seems improbable that after hitting the deceased, the bullet passing through his body, first hit mulberry tree at point No.12 and that another mulberry tree at point No.

11. Assuming, however, for the sake of arguments that it did happen like what has been said by the prosecution, the bullet' must have by this process reduced its velocity and should have dropped in that vicinity but no such bullet was recovered by the Investigating Officer. This improbability also casts doubt in the manner of firing by the accused party at the deceased. All these infirmities in the prosecution case create doubt in our mind regarding presence of the two P.Ws. at the spot and B. witnessing the occurrence because on no material particular, their statements find corroboration.

9. It has been brought on record through prosecution evidence itself that while the Investigating Officer was busy in recording the F.I.R. of Pir Badshah (PAV.7). Muhammad Iqbal Shah accused‑appellant also went to the police station and lodged a report for attempt al his life by Said Rahim Shah, Said Nazim Shah, the two deceased in this case and one Warika son of Gul Khan by firing at him. He was having fire‑arm injuries. After recording his report by way of F.I.R. No.60 of the said date, he was referred to the Civil Hospital for medical examination and treatment. He was examined or his injuries by Dr. Gulzar Muhammad Khan (P.W10) and the injuries were found on his person. (1) One fire‑arm inlet wound 1 /6" x 1/6" on left side of nose. (2) One Fire‑arm outlet wound 1/4" x 1/4" from right side nasal septum. The duration of the injuries was recorded as four to seven hours. On the report of said Muhammad Iqbal Shah accused‑appellant, a cross‑case was registered against Said Kamal Shah alias Warika because the other two charged namely Said Rahim Shah and Said Azim Shah having been killed, the case against them abated. The learned Sessions Judge, however, giving benefit of doubt to Said Kamal Shah, acquitted him of the charge levelled against him. We need not go into the propriety of conclusion of the learned trial Judge in the cross‑case but at the same time it cannot escape our notice that Muhammad Iqbal Shah accused appellant was caused fire‑arm injuries for which he charged the two deceased of this case but the two witnesses namely Pir Badshah and Said Narim Shah have made no reference whatsoever towards firing at the accused party. It has come on record that the injuries on the person of Iqbal Shah could not be self‑inflicted. It is also proved from the prosecution evidence itself that Iqbal Shah accused appellant went to lodge tile report in the police station almost at the same time when the complainant in this case had gone to the police station. The duration of the injuries caused to Muhammad Iqbal Shah, is also consistent with that of the two deceased in this case. Even if we for a moment believe the presence of the two P.Ws. at the relevant time at the spot and witnessing the occurrence, they have suppressed the material evidence regarding the causing of fire‑arm injuries to Muhammad 1qba1 Shah accused‑appellant. It is the consistent view of the superior Courts that when a witness is found to be telling lies on an important point which has a bearing on the culpability of the accused, his evidence cannot be attached any credence. In the Slate‑appellant v. Khairuz Zaman accused‑respondent reported as P L D 1960 Pesh. 50, it was held if an accused be found to have been injured in a fight with the deceased, it will be permissible to presume that it was the deceased who injured him, unless there is clear evidence or circumstance to thd' contrary, and if it is doubtful as to which of them attacked first, the benefit of doubt will go to the accused. In this case the stamp of fire arm injuries on the person of Muhammad Iqbal Shah accused‑appellant fully establishes that something (lid happen between deceased and the accused party which has resulted in the fire‑arm injuries on the person of Muhammad Iqbal Shah accused appellant and the two deceased. Which party was the aggressor and which one was aggressed upon, has not been clarified by the prosecution in this case and in that case at (cast the benefit of doubt is to go to the accused. Similarly in Abdur Rehman rind another v. Fida Hussain and 3 others 1989 P Cr. L J 2028 it was observed that Nonetheless the learned trial Judge has disbelieved their version of the occurrence, and rightly so, because they have not only given One sided version but had also suppressed the injuries sustained by the two accused Yet in another case reported as Falak Sher appellant v. The State respondent 1989 P Cr. L J 2107 it was observed that eye‑witnesses who suppress injury on accused's person in their previous statements before police as well as in their statements before trial Court ..cannot be treated as truthful witnesses ‑‑‑ it would be highly unsafe to place any reliance on such witnesses.

10. In the case in hand as elaborated above, not the slightest reference has been made towards the incident that had happened with the accused party by the two prosecution witnesses. Suppression of the injuries sustained by Iqbal Shah accused‑appellant on the part of the two pivot prosecution witnesses, renders their credibility as distrustful and in that situation their evidence deserves no consideration.

11. The prosecution case is also not consistent with the medical evidence. According to Said Nawaz Shah (P.W.8), before leaving for the fields, they had taken tea only and had taken no bread etc. with the tea. This version of the P.W. is belied by the medical evidence when Dr. Gulzar Muhammad Khan (P.W.10) who conducted autopsy on the dead bodies of the two deceased, stated that two ounces of semi‑digested food were found in the stomachs of the two deceased. He further went on to say that complete digestion of the solid food to leave the stomach is four to six hours. If the statement of (P.W.8) is presumed to be true one, then it does not find corroboration from the medical evidence because by the time the deceased were done to death, the presence of semi‑digested food in their stomachs was totally out of question. This contradiction inter se in the statement of Said Nawaz Shah P.W. and the medical evidence, casts doubt about the timings of the occurrence particularly when we notice admitted interpolation in the inquest report (Exh.P.L.) of Said Rahim Shah deceased. According to Yar Beg Khan, Investigating Officer (P.W. 11) initially the time of occurrence had been recorded either eight (8) or nine (9) a.m. and over it 11‑00 hours wag written. According to him it was possible that he had corrected the timings in accordance with the F.I.R. The presence of the semi=digested food material in the stomachs of the two deceased and the admitted interpolation in the inquest report (Exh.P.L.) casts serious doubt regarding the actual time of occurrence. In Muhammad Sharif v. The State 1980 S C M R 231, it was observed that `additions, alterations and interpolations made in the inquest reports apparently for changing time of occurrence ...such interpolations arousing suspicions about genuineness of context on face of record and disturbing judicial mind of Court... Prosecution and Investigating Officer not furnishing any explanation as to how unauthorised interpolation had crept into inquest reports in their custody.....Held, onus of proof in such case rested on prosecution and benefit of doubt to go to accused. In this case as observed earlier, the Investigating Officer has himself admitted the interpolation and has indirectly admitted that he made change in the time of occurrence with a view to bring it in conformity with the F.I.R. If the time of occurrence is taken to be eight (8) or nine (9) a.m. as interpolated to 11‑00 a.m. there is an inordinate delay in lodging the F.I.R. which stands unexplained and the prosecution story thus appears to be built up after due deliberations and consultations.

12. Said Pir Badshah (P.W.7) in his statement under section 161, Cr.P.C. had stated that when he went to the police station for report, he was told by the S.H.O. to bring the dead bodies and then the report will be recorded. He, however, resiled from that statement at the trial and disowned this assertion on his part in his statement under section 161, Cr.P.C. Unless some ulterior motive is ascribed and established against a Police Officer of the rank of a D.S.P. a statement recorded at the earliest stage under section 161, Cr.P.C. by a Police Officer is open for the accused to use it for the purpose of contradictions and in this regard his this statement before the D.S.R would substantiate that the F.I.R. in this case was recorded after preliminary investigation. In a similar situation where the eye‑witnesses were closely related to the deceased, their evidence had not been acted upon to the extent of their co‑accused and where the F.I.R. had been recorded after preliminary investigation. In Muhammad Azad and another v. The State 1988 P Cr. L J 1045 reliance was not placed on their statements

13. From whatever angle we look at the prosecution case, it is full of contradictions, improvements, improbabilities and doubts. The learned trial Judge therefore, wrongly relied upon the testimony of the two highly interested P.Ws. in convicting Faridullah Shah and Muhammad Iqbal Shah accused appellants for the murders of the two deceased when he himself disregarded their charge of the common object of the four (4) acquitted accused‑respondents with the two convicted accused‑appellants. Accordingly we would accept Criminal Appeal No.l2 of 1987, set aside the convictions and sentences passed against Faridullah Shah and Muhammad Iqbal Shah on both the counts and extending the benefit of doubt, acquit them of the charges levelled against them. They shall be set at liberty forthwith if not required in any other cause. Consequently State Appeal No.8 of 1988 and Criminal Revision Petition No.1 of 1988 stand dismissed.

14. Before we part with this case, we would like to observe that the learned Sessions Judge while convicting the two accused‑appellants under section 302/34, P.P.C. on two counts, directed the substantive sentences of life imprisonment each on each count to run consecutively. This conclusion of the learned trial Judge is violative of the mandatory provisions of section 35, Cr.P.C. The attention of the learned trial Judge is also invited to the observations of their Lordships of the Supreme Court in Khan Zaman and others v. The State 1987 S C M R 1382 wherein it was held that sentences of life imprisonment on two counts ordered to run consecutively, such consecutive running of sentences was violative of proviso (a) of section 35(2). Cr.P.C. and sentences were ordered to run concurrently. N.H.Q./1090/P Appeal accepted.