1994 PLP 590 (MLD)

Aslam alongwith his father Hassan residents of Khugiania Afghanistan and at present Yakka Toot, Peshawar City stood their trial under section 302/34, P.P.C. in the Court of Additional Sessions Judge-II, Peshawar. The case was registered against them vide F.I.R. No.411 dated 29-7-1985 of Police Station Hashtnagri. The learned trial Judge vide judgment dated 5-6-1990 acquitted Hassan accused while convicted Aslam under section 302, P.P.C. and sentenced him to suffer life imprisonment and a fine of Rs.25,000 (twenty-five thousand). In default of payment of fine the accused was to undergo further four years' R.I. It was directed that the fine if realized should be paid to the legal heirs of the deceased. The accused was also extended the benefit of section 382-B, Cr.P.C.

2. Briefly stated the facts of the case are that Daud Shah complainant P.W.7 lodged the report to Saida Jan S.I. P.W.5 to the effect that the complainant brought his donkey cart to `Gur Mandi', where he saw Wilayat Shah alias Gulgutto, his brother, Hassan son of Wali Muhammad and Aslam son of Hassan alongwith another person, whom he could identify by face. There Wilayat Shah deceased informed him that he had come there in order to demand his money outstanding against Hassan accused. When his brother demanded the money from Hassan, the latter got annoyed and refused to pay the debt, on which an altercation took place and both Aslam' and his father Hassan took out pistols from the folds of their Shalwars' and started firing at his brother Wilayat Shah, who on receipt of the injuries fell to the ground and expired. Both the accused then decamped from the spot. The complainant further stated in the said report that Hassan Khan accused had borrowed rupees one lac and one thousand from his dead brother Wilayat Shah about three years back but was not going to repay the said amount and in order to avoid the payment of loan they eventually murdered the deceased. The report of the complainant was reduced into writing by Saida Jan, S.I. P.W. 5 in the shape of a `Murasila'.Ex.PA./1, which was later on sent to the Police Station, where a case vide F.I.R. Ex.PA. was registered against both the accused. After the arrest of Aslam accused, complete challan was submitted against him and it was during the trial of accused Aslam when his co-accused Hassan was arrested. In order to prove its case the prosecution produced in all nineteen witnesses, out of whom P.Ws. Daud Shah and Shah Mahmood are the alleged eye-witnesses.

3. Saida Jan S.I., P.W.5 stated at the trial that on 29-7-1985 he was on patrol duty when he received information about the incident in `Gur Mandi' Peshawar and accordingly went there. Daud Shah complainant lodged the report with regard to the murder of his brother Wilayat Shah deceased which was recorded in the shape of a `Murasila' Ex.PA./1 and the dead body was then sent to mortuary for post-mortem examination. This witness also prepared injury sheet Ex.P.M./1 and inquest report Ex.P.M./2 of the deceased before the despatch of the body. The same witness also prepared memo. Ex.P.B. with regard to the recovery of an empty shell of 32 bore Ex.P.1 and blood-stained earth Ex.P.17, both from the spot. He also sealed these article into separate parcels. The witness also recorded statements of some of the P.Ws. Shah Mahmood P.W.6 appeared in Court but during his examination he resiled from his earlier statement, therefore, at the request of the A.P.P. he was declared hostile. P.W.7 Daud Shah is the complainant as well as an eye witness of the incident.

4. P.W.8 Dr. Abdul Khaliq, Medical Officer conducted autopsy on the dead body of the deceased Wilayat Shah on 30-7-1985 at 8-15 a.m. and found the following injuries on external examination:-- (1) A fire-arm entry wound on the postal lateral surface of the left upper arm measuring 1/4" x 1/4" in diameter and 5" below the top of the shoulder. (2) A fire-arm exit wound ovel in shape 1/2" x 1/2" in diameter on the medial wall of the left axilla. (3) Fire-arm entry wound of wound No.2 1/2" x 1/2" in diameter on the left chest on the interior axillary line 4" from the nipple and 6" below the top of the left shoulder. (4) Fire-arm entry wound on the left chest 2" above the nipple and 4" from the sternum round in shape and measuring 1/4" x 1/4" in diameter. (5) A fire-arm entry wound 4" below the left nipple on the left chest and 4" from the sternum measuring 1/2" x 1/2" in diameter. (6) A fire-arm exit wound on the right back 2" below the scapula and 5" from the centre measuring about 1/2" x 1/2" in diameter. (7) A fire-arm entry wound on the middle of the left forearm on the dorsal surface and measuring 1/4" x 1/4" in diameter. (8) A fire-arm wound .on the interior surface of the left forearm measuring 1/2" x 1/2" in diameter. (9) Infected wound on the right knee, dressing done. On internal examination the doctor found thoracic wall, both lungs and heart with corresponding blood vessels injured. Abdominal walls, small and large intestines and liver were injured. Stomach was injured and empty. According to the doctor time between injuries and death was zero to half an hour and between death and post-mortem examination about ten to fifteen hours. According to the witness death of the deceased was the result of injuries to the vital organs i.e. heart, lungs and liver causing haemorrhage.

5. Gul Zamin S.I. P.W.17 partly investigated the case. He incorporated the `Murasila' Ex.PA./1 into F.I.R. Ex.P.A. and then prepared the site plan Ex.P.S. at the instance of the complainant. The witness went to the house of the appellant Aslam and recovered a blood-stained `Chadir' Ex.P.20 from the `Kotha' the acquitted accused Hassan Khan in presence of the marginal witnesses. Vide recovery memo. Ex.P.C. the witness took into, possession clothes of the deceased and a packet containing spent bullets Ex.P.19 brought from the mortuary. As the accused were avoiding arrest, therefore, he obtained warrants under section 204, Cr.P.C. and proclamations under section 87, Cr.P.C. against both the accused.

6. The learned trial Judge after considering the prosecution evidence brought on record convicted Aslam accused and acquitted Hassan, as stated in the earlier part of this judgment.

7. Dissatisfied with his conviction and sentence Aslam convict has come up on appeal to this Court.

8. We have heard the learned counsel for the appellant and the State and have also perused the record with their assistance. The conviction of the appellant has been based on the evidence of Daud Shah P.W.7, a brother of the deceased, partly on the statement of Shah Mahmood P.W.6, a witness declared hostile, and the abscondence of the appellant. According to P.W.6, Aslam appellant and his father Hassan the acquitted accused, both effectively fired at Wilayat Shah alia Gulgutto deceased which proved fatal. According to the hostile witness who was relied upon by the trial Court, the appellant had only fired a single shot from point blank range which fact is belied by the medical evidence as five inlet wounds of two different dimensions were found on the body of. the deceased. The prosecution version with regard to Hassan, the acquitted accused, was not accepted by the trial Court, as a result he was A acquitted of the charge. The order of acquittal was not questioned by the State in appeal under section 417, Cr.P.C. Although Daud Shah, the eye-witness and ,a brother of the deceased, cannot be branded as interested witness as he had no motive to falsely implicate the appellant but he appears to be a chance witness. He on his own arrived at the scene of occurrence while driving his donkey cart when the delict took place. He is also not sure where he lodged the report, because in the same breath he submitted that it was lodged at the scene of occurrence and then that it was in the Police Station. According to the first informant Daud Shah P.W.7, the altercation between the parties started over the repayment of loan but the site plan would show that the deceased was fired at by the appellant and the acquitted accused from a distance of 13/14 paces. The scene of occurrence is, a busy `Gur Mandi' and all the shots hit the deceased on the left side of the body which is only possible from that distance if the firing is directed on statue and not on a living person.

9. Admittedly the parties are Afghan refugees. The stand of the appellant at the trial was that he was in Bajaor Agency and had not absconded. Abscondence per se has never been considered sufficient to base conviction thereupon, moreso in this case when the co-accused of the appellant remaining I fugitive from law for a longer period has been acquitted.

10. For the reasons here before we are of the view that the prosecution has not been able to bring home guilt to the appellant Aslam beyond reasonable doubt. As such, the appeal is accepted, conviction and sentence of the appellant are set aside and he is acquitted of the charge. He shall be set at liberty forthwith if not required in any other cause. N.H.Q./1512/P Appeal accepted.