1988 PLP 1125 (SCMR)

SHAFIUR RAHMAN, J.‑‑Leave to appeal was granted to the three convicts under section 302/149, P.P.C. to examine whether the required corroboration was available for the ocular testimony of interested witnesses and whether the medical evidence did no contradict their testimony. In spite of being related, the complainant party and the appellants party, had an old enmity in which the murders had taken place. The eye‑witnesses of the occurrence were Saleem Khan P. W.2 the son of the complainant and Sharifullah P.W.3 brother‑in‑law of the deceased, as well as his cousin. About 15 or 16 years before the occurrence for which the appellants were tried, Qudratullah, maternal ‑uncle of Sher Afzal, father of the two absconders, had been murdered for which Ahmed Ullah and others, cousins of Sharifullah P.W.3, were charged. Mir Rehman an uncle of Sharifullah was murdered in the year 1978 for which Gul Akbar the absconding accused and Abdul Qadar and their father Sher Afzal were charged in that case. Gul Akbar had absconded and the other two had been acquitted. On the 26th of April, 1982, between 9‑30 a.m. and 10‑00 a.m. Ainuddin Khan P.W.10 SHO, Police Station Parang, District Peshawar, got the information while on patrol duty that firing was going on between two groups. He rushed to the spot which happened to be "Dhari" of Gul Rehman deceased. He found the dead body of Gul Rehman there and recorded the statement of Saleem Khan P.W.2 at 10‑00 a.m. on which a case was registered at the Police Station. Saleem Khan stated that he was sitting alongwith Sharifullah P.W.3, when he heard shots being fired in the direction of his village. Soon there appeared on the scene, the three appellants, Wasal Khan and Samar Gul armed with guns and Fazal Amin with rifle, and two absconders also armed with rifles. All of them fired one shot each at the deceased Gul Rehman who was at a short distance from them. They also fired at Saleem Khan and Sharifullah P.W. but the shots proved ineffective. Saleem Khan P.W.2 had a rifle with which he fired at them but none of them was hurt. It transpired during the investigation that this occurrence was preceded by an attack on the life of Sher Afzal father of the two absconders in which he was killed and for which Saleem Khan P.W.2 his paternal uncles Noor Rehman and Fazal Rehman, were charged. While pursuing the assailants of Sher Afzal according to the version, the appellants had caused the murder of Gul Rehman. There were inlet wounds of fire‑arm on the dead body of Gul Rehman, all having the dimension of 1/4" x 1/4" and there was a fire‑arm grazed wound 4" x 4" . From the spot the Investigating Officer had recovered two empties of .12 bore, three empties of rifle 7 m.m. and one bullet. From the place from where Saleem Khan claimed to have fired at the assailants, two empties Exh.P.3. of the rifle were recovered and sent to fire‑arm expert alongwith the rifle recovered from Saleem Khan and matched with it. The other empties recovered from the spot i.e. two .12 bore and three rifle empties were not sent to the Fire Arms Expert at all and the Investigating officer gave the following explanation for it:‑ "I had recovered three empties shells of five shots rifle from the spot in this case, but I had not sent these shells to the Arms Expert with the rifle recovered from the possession of Salim. I had not sent these shells in order to rebut the contention that these shells were also fired with the rifle of Salim produced before me. Voluntarily stated that since these empties were recovered on the spot from the places wherefrom the accused allegedly fired at the deceased, I did not send these to the Arms Expert for comparising with the rifle of the complainant. I had not sent these shells to the Arms Expert to verify whether these were fired from a single rifle or different rifles. Similarly I also did not send the two empties of .12 bore recovered on the spot to verify as to whether these were fired by one or different shotgun." The appellants denied their participation in the occurrence and took up the plea that they were falsely charged on account of enmity. The learned trial Judge believed the ocular evidence and found corroborative evidence from the facts of the abscondence of the appellants. Abdul Qadar absconded at the stage of the arguments in the trial Court. For reasons recorded, convicting the appellants under section 302/149, sentence of life imprisonment was imposed and fine of Rs.5,000 each or in default one year rigorous imprisonment. The same evidence was disbelieved with regard to the charge under section 307/149, P.P.C. with respect to the firing cn Saleem Khan and Sharifullah . On appeal the High Court upheld the conviction and the sentence. In view of the serious enmity, the past murders, and the cross‑cases arising out of almost the same occurrence, satisfactory corroboration was required in the case. The medical evidence, a pointed out, gives the impression that all the shots fired on the deceased were from one weapon or from identical weapons. The most important evidence, namely the empties recovered from the spot, were not all of them sent to the fire‑arms expert. The reason given by the Investigating Officer for not sending the other empties is not only unsatisfactory but unbecoming an Investigating Officer for it indicates that he conducted the investigation not with an open mind but in order to support his own views and impressions of the occurrence. If Saleem Khan had to be believed by the Investigating Officer so implicitly, then there was nothing to investigate. All the empties recovered from the spot should have been sent to the Fire Arm Expert in order to find out whether two empties were fired fro weapons and whether the three other rifle empties were not fired from the rifle of Saleem Khan. The facts make it abundantly clear that Sher Afzal, the father of the two absconding accused, has been murdered immediately before this occurrence took place and it was thereafter that this occurrence had taken place. Nothing more has come on the record. In such a situation we consider that the interested testimony of Saleem Khan and Sharifullah does not receive the necessary corroboration from the medical evidence, the recoveries or the mere abscondence for sometime of the appellants after the occurrence. Giving the benefit of doubt to the appellants, we accept this appeal, set aside their conviction and sentence and order their release forthwith unless they are required in some other case. M.Y.H./W‑21/S????????????????????????????????????????????????????????????????????????????????? Appeal allowed.