P L D 1993 Peshawar 7 (PLP)

QAZI MUHAMMAD FAROOQ, J ‑‑This is an appeal preferred by Islam Badshah son of Khan Badshah, aged about 33/34 years, Khan Badshah son of Shah Nazar, aged about 65 years and Niaz Badshah son of Gul Bazar, aged about 60/62 years, residents of village Sarubi, District Karak, against the judgment dated 19‑3‑1991 of the learned Sessions Judge, Karak, whereby they were convicted and sentenced after their trial for the murder of Mst. Bibi Maryam and murderous assault on Mst. Amal Jana. They were sentenced under section 304(1), P.P.C. to imprisonment for life and to pay a fine of Rs.5,000 each or in default to undergo one year further R.I. each and under section 308, P.P.C. to two years' R.I. each and a fine of Rs.3,000 each or in default to suffer three months' further R.I. each. The judgment stipulates that the sentences of imprisonment shall run concurrently and a sum of Rs.10,000 and a sum of Rs.5,000 out of fines, if realised, shall be paid to the legal heirs of Mst. Bibi Maryam and Mst. Amal Jana respectively.

2. The occurrence giving rise to the case against the appellants and their absconding co‑accused Umar Badshah took place at 5‑00 p.m. on 26‑7‑1989 in village Sarubi distant 18/19 kilometres from Police Station Sabir Abad and the F.I.R. was lodged on the same day at 11‑30 p.m. by one Umar Gul, brother‑in -law of Mst. Bibi Maryam deceased, and it was recorded by Haq Nawaz S.H.O. (P.W.10).

3. The prosecution version of the occurrence is that on the fateful day the complainant had invited his co‑villagers to a `Khairat' party, arranged in connection with the circumcision ceremony of his grandsons. Hukam Gul and Islam Gul sons of Gul Raz came to the complainant's house to participate in the `Khairat' party duly armed and sat on the cots lying in the `Baithak'. They were followed by Khan Badshah son of Shah Nazar, Niaz Badshah son of Gul Bazar, Umar Badshah son of Niaz Badshah and Islam Badshah son of Khan Badshah who were also fully armed. They too sat on the cots. Some time thereafter, Khan Badshah, Niaz Badshah, Umar Badshah and Islam Badshah pounced upon Hukam Gul and they started grappling but the complainant and others interceded and separated them. Hukam Gul and Islam Gul started towards the courtyard of the complainant's house on which Islam Badshah and Umar Badshah fired one shot each at Hukam Gul from behind but he escaped unhurt and the shot fired by Islam Badshah hit Mst. Bibi Maryam who had come out of the house on hearing the noise and shot fired by Umar Badshah hit a minor girl named Amal Jana. Thereafter, Umar Badshah, Islam Badshah, Khan Badshah and Niaz Badshah bolted away to their house.

4. Mst. Bibi Maryam in an injured condition was taken to the police station and from there to the Rural Health Centre, Sabir Abad where at 12‑30 p.m. she was medically examined by Dr. Umar Hayat (P.W.4) who found the following:‑‑ (1) An entry wound of small size situated on the right side of umblicus in the abdomen. Blackening around this wound is present. (2) A group of four wounds is present over the lateral side of the right thigh. The upper two are 1" apart while the lower two are 2" apart. Blackening around the wounds is present. (3) Entry hole is present in the right buttock with blackening. Exit hole of the same is present 2" from mid‑line on the back and 4" from the anterior superior iliac spine. (4) Two entry holes of small size with blackening present over the right buttock. (5) The right index finger of the right hand has a lacerated wound of about 1‑1/2" in length. Nature of the injuries was dangerous and injuries were caused by fire arm within a duration of 2 to 3 hours. The same doctor on the same day and time examined Mst Amal Jana, aged about 7/8 years and found the following:‑‑ (1) Entry wound of about 4‑1/2" circular in shape. Blackening present around the wound. It is situated in front of elbow of right side. Exit wound No.l is present over the back forearm, 1‑1/2". The margins are irregular and be‑veiled. (2) Entry wound No.2 is situated just below the right elbow circular in shape. Blackening around it is present. Exit wound No.2 is situated on the back of right arm, 1" in size. Nature of injuries was grievous. Injuries were caused by fire‑arm within a duration of 2 to 3 hours."

5. Mst. Bibi Maryam had expired in the Hospital some time after the occurrence and her dead body was taken away by her relatives and buried without post‑mortem. However, on 2‑8‑1989 her dead body was exhumed and subjected to autopsy by Dr. Umar Hayat (P.W.4) who found the following injuries on external examination:‑‑ (1) Entry wound of small size situated on the right side of the umbilicus and body has the wound of operation i.e. leprotomy. , (2) A group of entry wound on the right thigh on lateral side. The upper two are 1" apart while the lower two are 2" apart. (3) An entry wound of about 1‑1/4" in size is present over the right buttock. Exit hole of about 1‑' long is present over back at right side, 2" away from the mid‑line and 4" from the anterior superior iliac spine. (4) Two entry holes of small size are present over the right buttock. (5) The right index finger of right hand has lacerated wound of about 1‑1/2" with fracture of its bone. On dissection the doctor found abdominal walls perforated at 3" away from the umbfcus and a wound of leprotomy i.e. operation. Peritoneum was perforated and mesentery was ruptured. Stomach was normal and empty. There were four perforations in the small intestines and four perforations in the sigmoid colon. Fire‑arm injury causing haemorrhage and fire‑arm injury causing perforation of small intestines and large intestines and mesentry leading to bleedings. The haemorrhage led to shock. The shock causing cardio‑pulmonary arrest and death. Time that elapsed between injuries and death was 28 to 30 hours and that between death and post‑mortem 6 to 7 hours.

6. To prove its case, the prosecution examined as many as ten witnesses of whom Umar Gul (P.W.7), Hukam Gul (P.W.8) and Hassan Shah (P.W_9) furnished ocular evidence and Asmat Shah (P.W.2), Gul Zaeef (P.W,3), Pir Nawaz Khan SHO (P.W.5) and Sar Badshah (P.W.6) gave evidence of formal nature while Dr. Umar Hayat (P.W.4) proved the medical reports of the victims as also the post‑mortem report and Haq Nawaz SHO (P.W.10) gave the details of the investigation carried out by him. Akber Khan L.H.C. (P.W_1) deposed about the abscondence of Islam Badshah appellant after the occurrence and the issuance of warrant under section 204, Cr.P.C. and the proclamations under section 87/88, Cr.P.C. 6‑A. When examined under section 342,.Cr.P.C, all the appellants denied the prosecution allegations and professed innocence. Their plea was one of complete denial of occurrence and false implication. Regarding his alleged abscondence Islam Badshah took the stance that prior to the occurrence he had gone to Punjab to earn his livelihood and when he returned to his village, he learnt about the occurrence and voluntarily surrendered before the police.

7. The learned trial Judge by placing reliance on the ocular evidence, the medical evidence and the abscondence of Islam Badshah after the occurrence convicted and sentenced the appellants as stated above.

8. It will be pertinent to point out at this stage that the appellants Khan Badshah and Niaz Badshah neither fired at Hukam Gul (P.W.8) nor caused any harm in any manner either to Mst. Bibi Maryam deceased or Mst. Amal Jana. As a matter of fact no overt act was attributed to them in the F.I.R. or at the trial. The observations of the learned trial Court that they are related inter se and had grappled with Hukam Gul (P.W.8) while he was sitting in the gathering are not at all sufficient to saddle them with common intention. The learned trial Court has not given any cogent reason to justify their conviction and the learned Additional Advocate‑General also could not find any reason to support their conviction. They have undoubtedly been convicted mechanically and, as such, their conviction and sentences are not sustainable. It may also be pointed out that Umar Badshah at whose hands Mst. Amal Jana, who was not examined as a witness due to tender age, had allegedly sustained fire‑arm injuries, is a fugitive from law; therefore, we are primarily concerned with he case of Islam Badshah. The ocular evidence is the mainstay of the prosecution. The learned trial Court has placed implicit reliance on the testimony of Umar Gul (P.W.7) and Hassan Shah (P.W.9) but after giving our anxious consideration to the criticism levelled against them by the learned counsel for the appellants, we have come to the conclusion that the ocular evidence is wholly untrustworthy and does not inspire confidence. However, before, adverting to the ocular evidence we deem it necessary to attend to the contention raised by the learned counsel for the appellants that the version of the occurrence given in the F.I.R. was doubtful as there was considerable delay in lodging the F.I.R. which has not been satisfactoriy explained.

9. The occurrence took place on 26‑7‑1989 at about 5‑00 p.m. but the F.I.R. was lodged at 11‑30 p.m. The distance between the spot of occurrence and the police station, as given in the F.I.R. is 18/19 kilometres but according to the statement of Hassan Shah (P.W.9), it is about 7/8 kilometres. It is in the cross‑examination of the complainant Umar Gul (P.W.7) that he had reached the police station at about 10‑00 p.m. There is thus, a delay of at least one and a half hours in lodging the F.I.R. which has not been explained at all and, as such, there is no escape from the conclusion that the complainant had enough time to fabricate a story and the F.I.R. ways lodged after deliberations and consultations. This aspect of the case in view of enmity between the parties and probability of cross‑firing goes a long way to make the prosecution case doubtful.

10. The ocular evidence is in conflict with the medical evidence. The site -plan, Exh.P.B., shows the distance between point No.2 where Mst. Bibi Maryam was hit by the shot fired by Islam Badshah and point No.6 from where the shot had been fired to be 14 paces. The medical evidence, on the other hand, shows blackening around all the four entrance wounds sustained by Mst. Bibi Maryam deceased. Dr. Umar Hayat (P.W.4) has stated in his cross- examination that "blackening on wounds cannot be caused beyond a distance of 4/5 feet". This opinion gets support from the following commentary in Modi's Medical Jurisprudence Twentieth Edition, pages 227 and 228: "Blackening is found, if a fire‑arm like shotgun is discharged from a distance of not more than three feet " Even if this incompatibility is overlooked there is another inconsistency which is too glaring to be condoned. All the three eye‑witnesses have attributed only one shot to Islam Badshah as a result of which Mst. Bibi Maryam had lost her life but the medical evidence shows that she had sustained four fire‑arm injuries on the front side as well as on the back side of her body and Dr. Umar Hayat (P.W.4) who had conducted the post‑mortem examination has stated in most unequivocal terms that the injuries sustained by her were caused by more than one shot.‑It is now well settled that no reliance can be placed on the ocular evidence which is incompatible with the medical evidence. In Zarshad's case (1972 SCMR 644) the ocular evidence was not believed for the reason that the eye‑witness had stated that the deceased was fired at from a distance of 4/10 paces but the medical evidence disclosed tattooing and blackening marks upon deceased which indicated that the deceased was shot at from a very close range. In Nawaz Ali's case (1981 SCMR 132) the ocular evidence was not taken into consideration on the ground that distance of firing as stated by the eye‑witnesses was five paces but 4 to 5 entrance wounds had charring marks. In Siddiq's case (1977 PCr.LJ 30) the ocular evidence being directly in conflict with medical evidence regarding number of injuries caused to the deceased was not believed. In Muhammad Hassan's case (NLR 1992 Criminal 467) it was observed that it is not safe to rely on the eye‑witness account if it is contradicted by medical evidence. In Muhammad Tayyib's case 1991 PCr.LJ 174 it was observed that the eye‑witnesses whose evidence is totally negated by medical evidence cannot be said to have seen the occurrence.

11. The eye‑witnesses are related to the deceased and inimically disposed towards the appellants though the complainant has throughout endeavoured to give an impression that he is a disinterested witness having no enmity with the appellants. Admittedly, Mst. Bibi Maryam deceased was sister‑in‑law of Umar Gul (P.W.7), cousin of Hukam Gul (P.W.8), who was allegedly fired at ineffectively by Islam Badshah appellant and who for reasons known best to him had made himself scarce after the occurrence and recorded his statement under section 161, Cr.P.C. after four days of the occurrence, and niece of Hassan Shah (P.W.9), who is also grandfather of Mst. Amal Jana. It is in prosecution evidence that there is enmity between the appellants and Hukam Gul (P.W.8) who is sister's son of Hassan Shah (P.W.9). In this backdrop all the three eye‑witnesses stand branded with interestedness and, as such, the evidence furnished by them does not command respect. Ordinarily in such a situation the material available on record is scanned with a view' to find corroborative evidence but in the present case there is no need to look for corroborative evidence as the ocular evidence being incompatible with the medical evidence suffers from an inherent infirmity and defect which cannot be cured by any corroborative piece of evidence howsoever strong it may be.

12. Coming to the alleged abscondence of Islam Badshah after the occurrence it would suffice to say that it is meaningless as it can neither cure the inherent defects of the ocular evidence nor by itself is sufficient to sustain conviction.

13. The prosecution case against the appellants has not been proved beyond any reasonable doubt. We, therefore, accept this appeal, set aside the C conviction and sentences of the appellants and acquit them of the charges levelled against them. They shall be released forthwith if not required in any other case. The acquittal of the appellants, however, shall have no bearing on the merits of the case of their absconding co‑accused Umar Badshah. By our short order dated 7‑9‑1992, we had accepted the appeal and acquitted the appellants. Herein above are the reasons for the same. N.H.Q./1414/P Appeal accepted.