DIL NAWAZ KHAN Versus THE STATE S. Zafar Abbas Zaidi , Haji Sadullah Khan Nlian Khel

Dil Nawaz Khan son of Gulsher Ali Khan, of Diwan Tughal Khel, Tehsil and District Bannu was convicted of the offence under Section 304-A P.P.C. and was sentenced to 10 years R.I. and also to pay a fine of Rs.30,000 in default whereof to undergo S.I. for further two years by the order dated 8-10-1987, of Mr. Muhammad Ayaz Khan, Additional Sessions Judge, Bannu against which he has come in appeal in this Court.

2. The prosecution case in brief is that on 15-2-1986 Mir Shah Jehan complainant lodged a -report in Police Station Mandan at 2145 hours against Gulzar Ali Khan, Dil Nawaz Khan, Mir Wall Khan, Gulsher Ali Khan and Muhammad Sher Khan for committing the murders of Noor Alam Jan and Mir Sahib Khan by firing. The motive for the offence was given to be a dispute between the deceased and the accused over quarrelling of their children a day before the date of occurrence. It was alleged that on the eventful day the marriage of Ali Zaman was being celebrated in the Primary Girls School in village Diwan Tughal Khel and for the entertainment of guests Mir Sahib Khan and Noor Alam Jan the two deceased besides Gulzar Ali (acquitted accused) Dil Nawaz (accused-appellant) and Mir Wali (acquitted accused) were present busy in service. The complainant Mir Shah Jehan alongwith Dost Muhammad, Ali Zaman, Lowar Khan and Shamraz Khan and Mir Karaz were sitting there alongwith others. There was electric light throughout the premises and at about 'Khuftan' time when all the aforesaid persons were still present, Muhammad Sher Khan (absconding accused) and Gul Sher Ali Khan (acquitted accused) appeared them armed with 'gilty' rifles and immediately on arrival Gul Sher Ali Khan asked Gulzar Ali, Dil Nawaz, Muhammad Sher Khan and Mir Wall Khan what for they were still waiting and asked them to kill. Accordingly Gulzar Ali, Dil Nawaz, Muhammad Sher Khan and Mir Wali Khan fired at Noor Alam Jan and Mir Sahib Khan (deceased) as a result of which they were hit and died on the spot. All the accused decamped from the spot. Leaving the dead bodies of the two deceased, complainant Mir Shah Jehan went to the Police Station and lodged the report which was recorded per F. I. R. No.11 of Police Station Mandan. After recording the report Muhammad Shafi P. W.8 went to the spot and prepared the injury sheets and inquest reports of the two deceased. He despatched the dead bodies to the mortuary for pbst-mortem examination. He took into possession the blood-stained earth and also 10 empty shells of. Klashinikov and nine empty shells of 303 bore rifle in the presence of the marginal witnesses. One spent bullet of Klashinikov was also taken into possession. He prepared the site plan, recorded the statements of the PWs and arrested Gul Sher Ali Khan (acquitted accused). Dil Nawaz and Mir Wali accused were arrested on 2-3-1986 while Gulzar Ali and Muhammad Sher had obtained pre-arrest bail. Gulzar Ali was formally arrested on 2-3-1986 and Muhammad Sher on 7.-3-1986. However, Muhammad Sher accused became fugitive from law and is still in abscondance. After completing the investigation complete challan was put in the Court of the learned Additional Sessions Judge, Bannu against Gulzar Ali, Dil Nawaz Khan, Mir Wali Khan and Gulsher Ali Khan. The learned trial Judge after due trial extending the benefit of doubt acquitted Gulzar Ali Khan, Mir Waii Khan and Gulsher Ali Khan and convicted Dil Nawaz Khan under Section 304-A, P.P.C. and sentenced him as aforesaid.

3. Arguments of the learned counsel for the appellant and the learned Assistant Advocate General on behalf of the State respondent have been heard and record of the case examined.

4. In this case the prosecution story has altogether been rejected by the trial Judge. No appeal has been preferred by the State against the acquittal of the accused by the trial Judge nor has any revision been filed by the complainant against the conclusion arrived at by the trial Judge. The learned trial Judge was concluded that: ---

"In view of the above discussion coupled with the surrounding circumstances of the case, I am of the firm believe that this tragedy was accidental and the murder of the two deceased namely Mir Sahib Khan and Noor Alam Jan was not deliberate because the guilty intention and motive of the occurrence is absent. As discussed above the defence has put responsibility of this tragedy on one accused as is evident from the cross-examination of the defence counsel but no one among the accused has dared to accept the responsibility of the accidental occurrence. However, all the accused facing trial have confessed in their statements that they were present at the time of the occurrence and this tragedy was the result of accidental firing at the hand of one person but the accused have not mentioned the name of any person at whose hand this incident was done. From the trend of cross-examination of defence and the statements of accused it is clear that one accused was responsible for this tragedy, although the accused have not mentioned his name, but his name is disclosed by the statement of Muhammad Shafi Pt9-8 who was the I.O. in the instant case and he stated that accused Dil Nawaz was responsible for the occurrence and with his accidental firing with one bullet the two deceased died on the spot."

Muhammad Shafi (PW-8) with whose statement the learned trial Judge was influenced to arrive at the above quoted conclusion, in clear words stated that during the investigation he came to the conclusion that aerial firing was made in the wedding ceremony in which the occurrence took place and there was also folk dancing programme. He further went on to say that according to the result of his investigation and enquiry in the Illaqa he came to the conclusion that the present occurrence was the result of accidental fire shot of Klashinikov and both the deceased were hit with one and the same bullet. Firstly it is an established principle of criminal practice that once the prosecution witnesses are disbelieved as regards the main part of occurrence the Court cannot act upon some other theory not supported by evidence to record conviction. As observed earlier in the instant case the learned trial Judge has disbelieved the prosecution case and the statements of the prosecution witnesses with regard to the commission of murder on the other hand the learned trial Judge appears to be mainly persuaded by the observations of the Investigating Officer that according to his investigation the matter was accidental one and Dil Nawaz (accused-appellant) was basically responsible through his negligent act for the murders of the two deceased. The learned trial Judge failed to get corroboration of to assertion of the Investigating Officer through independent evidence. However, for academic interest it is to be seen whether the conclusion of the Investigating Officer that it was only Dil Nawaz (accused-appellant) with whose negligent act two persons were killed is corroborated by the medical evidence and other surrounding circumstances. In this connection reference may be made to the statement of Doctor Zafarullah Khan (PW.6) who found one fire arm injury wound 1/2" x 1/2" on the left side of skull 2" above and posterior to the left ear and one fire arm exit would 2" x 2" on the side of skull, 2 " above and posterior to the right ear, on the person of Mir Sahib Khan deceased. The same doctor also found one fire-arm injury 1/4" x 1/4" on lateral surface of right side of skull 3" above the right rempor-mandibular joint and one fire-arm exit wound 5" x 1" on the posterior lateral side of left side skull 3" above and posterior to the left ear. The I.O. has further as a result of his investigation affirmed that the injuries caused to both the deceased were the result of one bullet of Klashinikov. The perusal of the site plan would reveal that Mir Sahib Khan (deceased) was at point No.1 and Noor Alam Jan (deceased) at point No.2 sitting on a 'Charpai' close to each other at the time of occurrence both facing towards north. Dil Nawaz (accused-appellant) is shown at point No.3. Now if the conclusions of the trial Judge on the basis of the statement of the Investigating Officer are taken to be correct in that case if the bullet after hitting Noor Alam Jan (deceased) also hit Mir Sahib Khan (deceased) in that case the entrance wounds should have been caused on the right side of skull of both the deceased. On the other hand the medical evidence suggests that Noor Alam Jan (deceased) received fire-arm inlet injury wound on the right side of the skull while Mir Sahto Khan (deceased) received entrance wound on the left side of his skull. This would suggest that the assertion of the I.O. that both the deceased were killed as a result of one bullet is incorrect and not supported by the medical evidence. The I.O. has clearly mentioned in his statement that it is customary in the Illaqa that in majority cases in the wedding ceremonies there are dancing programmes and firing is made in jubilation in the air. It is also in his statement that aerial firing was made in the wedding ceremony in the instant case as well. In such a situation once it is held that it was not a premeditated or pre-planned incident and the prosecution itself admits the aerial firing it would be very difficult to ascertain as to with whose shot or shots the two deceased met their death. One thing of course is very' much clear that keeping in view the seats of injuries on the persons of the two deceased it could not be the result of one bullet. It is consistent preposition of the superior Courts that the veracity of witnesses is not divisible and when the prosecution evidence in regard to majority of the accused is disbelieved it cannot be accepted in regard to the remaining accused in the absence of confirmatory evidence connecting the accused. Similarly where it is found that the prosecution has implicated innocent persons alongwith the guilty there must be confirmatory evidence of unimpeaching character to warrant conviction of one accused out of lot of the persons charged. In Rehmat and others v. The State reported as P L D 1959 SC (Pak) 109 it was held that: ----

"Where the entire case rests on ocular evidence, which is subject to such general doubts, it is obviously not consistent with the safe administration of justice to select for conviction those persons upon whom the eye-witnesses fix specific parts in the accomplishment of the crime. The case fails against each of the accused persons unless there be evidence aliunde e.g. a confession or circumstantial evidence, which by itself may suffice to show, beyond reasonable doubt, his implication in the crime. No circumstantial evidence or admission of this nature appears against any of the accused persons in the present case. In our opinion, each of them was entitled to acquittal on the ground that the case had not been proved against all or any of them beyond reasonable doubt by the prosecution evidence."

Similarly in Zulfiqar Ahmad v. The State reported as PLD 1986 SC 477 it was held: -

"Where the testimony of eye-witnesses has been disbelieved with regard to some of the accused, it can be used against the remaining accused only when some independent corroboratory evidence is available on the record to support their testimony qua those accused."

In the present case as discussed above the evidence of the prosecution witnesses has been totally discarded by the trial Judge. The conviction of the accused-appellant was recorded by the trial Judge only on the evidence of the Investigating Officer who was not eye--witness to the occurrence but as a result of his investigation he opined that the incident had not occurred in the manner deposed by the prosecution witnesses but it was the result of negligent act on the part of Dil Nawaz accused-appellant with whose single shot the two deceased met their deaths. This observation of the Investigating Officer is no; supported in any manner by the evidence available on record. On the other hand it is materially contradicted by the medical evidence Moreover for the sake of arguments it may be agitated that the I.O. as a result of his fair investigation came to a conclusion different from that alleged by the prosecution, in that case it was incumbent upon the I.O. to have put in challan under section 304-A, P.P.C against Dil Nawaz accused-appellant alone and not under section 302/ 148/149, P.P.C. This aspect of the matter also suggests that it was a belated invention because the prosecution case has nowhere been that it was a case of accidental firing. On the other hand the prosecution has all along stressed that it was a premeditated pre-planned affair. Besides, as I have observed earlier, the I.O. has recovered 10 empty shells of Klashinikov and 9 empty shells of 303 bore rifle. He has further confirmed the aerial firing in the wedding ceremony of Ali Zaman and in the absence of evidence of unimpeachable character', fixing responsibility of the negligent act on the part of Dil Nawaz accused-appellant, the prosecution evidence having been disbelieved in toto with regard to the murders, the conviction of the accused appellant under section 304-A, P.P.C was not warranted in law and he too was entitled to acquittal.

5. Accordingly I accept this appeals set aside the convictions and sentences of the accused-appellant and direct his release forthwith if not wanted in any other case.

M.Y.H./602/P Appeal allowed.