1988 PLP 645 (SCMR)

ALI HUSSAIN QAZILBASH, J.--This is an appeal by leave from the judgment of the Peshawar High Court, dated the 13th of January, 1981.

2. The facts as divulged in the F.I.R. lodged by Niaz Muhammad (P.W.6) in Police Station Risalpur on 6-6-1978 at about 10.45 at night are that half an hour earlier he alongwith his relation Muhammad Tariq and his neighbour Haleem Khan were present in the Hujra of Fazal Khan where a bulb was on in its courtyard. In the meantime Fazai Rabi and Sarfraz, his co-villagers, armed with topaks arrived at the spot and both of them started firing at them, as a result of which Muhammad Tariq was hit and died at the spot and he (the complainant) also received injuries as a result of the firing. Shamsher and Hussain Khan, his other co-villagers, were present at the spot who saw the occurrence. The motive given it the F.I.R. was that Fazal Rabi and Sarfraz were called to the police station in connector with some cases and they suspected him, i.e., the complainant, for having given the information in this regard to the police.

3. The report was recorded by Muhammad Islam Khan, S.H.O. Risalpur, who prepared the injury statement of Niaz Muhammad and sent him to the hospital for treatment. He also prepared the injury statement of Hahm Khan (P.W.7) and thereafter he proceeded to the spot where he found the deceased lying dead in the Hujra. He prepared his injury sheet and inquest report and sent the dead body to the mortuary for post-mortem examination. He then prepared the site plan and took blood-stained earth from the spot and also took into possession two bulbs of 60 watt from the Hujra of Fazal Khan and from the back of the house of Maddad Khan. He also took three pellets and a few cardboards from the spot and sealed them into a parcel. The appellant was absconding, so warrants under section 204, Cr.P. C. and proceedings under section 87, Cr.P. C. were taken. The appellant was, however, arrested on 24-11-1978 from village Ghaladher Koroona in a police raid. Since Sarfraz was absconding, the challan against the appellant after completion of the investigation was submitted to the trial Court.

4. At the trial, the prosecution in support of its case produced as many as ten witnesses including Dr.Iftikhar Ali (P.W.4) who had conducted the post-mortem examination of the dead body of Muhammad Tariq deceased, and Dr. Muhammad Irshad (P.W.5). During the post mortem examination Dr.Iftikhar Ali found two fire-arm entry wounds on the outer left of the deceased 2" above his ear and on the left side upper half of his back. An abrasion near his left shoulder was also found. Dr. Muhammad Irshad on examining Niaz Muhammad found as many as 33 inlet wounds on various parts of his body. He also found a wound on the person of Haleem Khan P.W. The appellant in his statement under section 342, Cr.P.C. denied the charge of murder of Muhammad Tariq and firing effectively on Niaz Muhammad and Haleem Khan P.Ws. He also denied his abscondance and stated that before the occurrence he had gone to Punjab. He also refuted the motive set up by the prosecution in this case. After the conclusion of the trial the learned Additional Sessions Judge, Nowshera, vide his judgment dated 22-12-1979, convicted the appellant under section 302/34, P.P.C. and sentenced him to death. He was also sentenced to a fine of Rs.5,000 or in default to three years' R.I. He was also ordered to pay a sum of Rs.5,000 to be paid as compensation to the heirs of the deceased or in default to suffer six months' R.I. He was further convicted under section 307/34, P.P.C. on two counts and sentenced to five years' R.1. on each count and to a fine of Rs.3,000 on each count or in default to two .years' R.I. He was also ordered to pay Rs.2,000 as compensation to Haleem Khan P.W and Rs.2,000 as compensation to Niaz Muhammad P.W., or in default of payment to suffer six months' R.I. on each count. The appeal filed by the appellant in the High Court was dismissed through the impugned judgment.

5. Leave in this case was granted for re-appraisal of evidence in order to determine whether the case has been decided in accordance with the principles laid down by this Court for safe dispensation of justice in criminal cases.

6. We have heard the learned counsel for the parties. The point which requires re-examination in this case is whether the medical evidence is in conflict with the -eye-version account and site plan and whether in the facts and circumstances of the case the identification of the assailants by the witnesses was possible.

6. As alleged -by the, prosecution:, the occurrence took place at about 10.15 at night on the 6th of June, 1978 inside the Hujra of Fazal Khan where Muhammad Tariq was sitting and talking to Niaz Muhammad (P.W.6) and Haleem Khan (P.W.7). Besides them, Hussain Khan (P.W.8) and Shamsher (not produced) were also present in the same Hujra sitting on cots at some distance. The night was dark but a bulb was on in the courtyard of the Hujra of Fazal Khan. The witnesses in this case are either related to each other or have friend relations but none has any bloodfeud with the appellant. Niaz Muhammad (P.W.6) and Haleem Khan (P.W.7) have stamps of injuries on their persons, therefore, their presence at the spot at the relevant time is not open to question. Both of them and Hussain Khan (P.W.8) are consistent in charging the appellant for firing at Muhammad Tariq deceased and causing injuries to the P.Ws. All these witnesses are also consistent in alleging that they had identified the appellant and absconding accused in the light of the bulb which was hanging the back of the house of Madad Khan.

7. As stated earlier, no enmity existed between the parties, therefore, the chances of false implication of the appellant in the commission of the crime are remote. The examination of the ocular version of the occurrence in the light of the medical evidence and the site plan has, however, led us to the conclusion that the three eye-witnesses have not come out with the truth and thus the case against the appellant is not free from doubt. According to the site plan Ex.P. B. , which had been prepared at the instance of the eye witnesses, Muhammad Tariq deceased, Niaz Muhammad and Haleem Khan, injured witnesses have been shown at points 1,2 and 3, where Muhammad Tariq deceased and Haleem Khan were sitting on one cot and Niaz Muhammad on another. Hussain Khan (P.W.8) and Shamsher (not produced) have been shown at points 5 and 6 sitting on the same cot. A 60 watt bulb has been shown inside the Hujra of Fazal Khan at point No.11 which is at a distance of 6 paces, i.e. 15 feet, from point No.1. The appellant has been shown at point No.1 and close to him at point No.9 the absconding accused was alleged to be present. Another 60 watt bulb has been shown burning at the back of the house of Madad Khan at point No.10. According to the site plan the appellant fired at the deceased and his two companions from point No.8 which has been shown to be at a distance of 7 paces, i.e., 17 feet. Thus, according to the site plan the appellant had fired at the deceased and his companions from a close range. According to the medical evidence, however, all the fire-arm injuries, which are 33 in number on the person of Niaz Muhammad (P.W.6) having various dimensions, are only skin deep. Similarly the firearm injury on the person of Haleem Khan (P.W.7) is also skin deep. Though the nature of the injuries on the person of Muhammad Tariq deceased is different but all the same since he was sitting close to the two injured witnesses, it cannot be said with certainty that the complainant party was fired at by the appellant from point No.8 which is at a distance of only 17 feet. Had the appellant fired from point No.8 at the complainant party, which at the relevant time was at a distance of 17 feet, it would have caused immense damage to the bodies of the two injured P.Ws. We are, therefore, of the view that the way the occurrence had taken place was not the one as disclosed by the prosecution.

8. As to the identification of the assailants by the P.Ws. in the light of the 60 watt bulb hanging at point No.10 at the back of the house of Madad Khan, the contention of the learned counsel for the appellant is that this was a fabricated piece of evidence. In this respect he invited our attention to the F.I.R. lodged by Niaz Muhammad, wherein he has conveniently omitted to mention the existing of the bulb at point No.10: further that Haleem Khan (P.W.7) has admitted at the trial that he had not seen any other bulb except the one in the Hujra of Fazal Khan. It was also contended that the bulb had to be introduced because keeping in view the distance of the place from where the assailants are said to have fired, they could not have been identified by the eye-witnesses except with the help of the light of the bulb at point No.10. In support reliance was placed on the admission of Niaz Muhammad at the trial to the effect that "if there had been no bulb hanging at the house of Madad Khan we would have not identified the accused and the absconder" and still further on the admission of the investigating officer that if there had been no bulb at point No.10, then the identification of the culprits was not possible by the P.Ws. He lastly submitted that according to the site plan, point No.10 where the bulb was allegedly hanging was the height of 16 feet and it was admitted by Rasul Khan (P.W.2) that this bulb .was not permanently fixed and that he had removed the bulb while standing on a cot. We think in view of the existing evidence the contention of the learned counsel for the appellant has lot of force in it. In all probability the installation of the bulb at point No.10 was a cooked up affair so that identification could be made possible. There is yet another circumstance which has created doubt in our mind about the existence of the bulb at point No.10. In the site plan, point No.8 where the presence of the appellant has been shown, is very close to the point where the bulb was allegedly burning. It, therefore, does not appeal to one's mind that the assailant would under any circumstance select such a place for committing a crime where from he could be easily identified, moreso when he could have easily selected any other point because the southern side of the Hujra was open. We, therefore, discard this piece of evidence.

9. The upshot of the above is that the case against the appellant is not free from doubt. We, therefore, accept this appeal and acquit the appellant of the delict by giving him the benefit of doubt. M.Y.H./F-38/5 Appeal accepted.