MASHAL KHAN Versus THE STATE

QAZI MUHAMMAD FAROOQ, J.- -- On 4-6-1985 an incident of firing took place in village Samandi, Tehsil and District Lakki, in which one person lost his life and two sustained fire-arm injuries. In the ensuing F.I.R. as many as nine persons were nominated, as the accused of whom two, namely Mumtaz Khan and Dil Jan are still fugitives from law. The remaining accused, of whom Sher Ali Khan has died, were arrested from time to time and tried by the learned Sessions Judge, Lakki for offences under section 302/307/148/149, P.P.C. The learned trial Judge by his judgment, dated 24-1-1994 acquitted four out of the lot, namely, Abbas Khan, Sattar Khan, Amir Jan and Aslam Khan but found Mashal Khan, aged about 37/38 years, and his father Muhammad Nawaz Khan, aged about 52/53 years, guilty of committing the murder of Izzat Khan and launching murderous assault on Bahadur Khan and Gulnawaz and consequently convicted them under section 302/34, P.P.C. and sentenced them to imprisonment for life and a tine of Rs.50,000 each or three years' S.I. each in default of payment of fine. A direction was also given to the effect- that half of the fine, on realization, should be paid to the legal heirs. of the deceased as compensation under section; 544-A, Cr.P.C..-The benefit of section 382-B, Cr.P.C. was also extended.

2. The convicts have, filed the appeal in hand while the complainant Mashal Khan has filed a Criminal Revision (No. 1 of 1994) against the acquittal of the -aforementioned four accused and for enhancement of the sentences awarded to the appellants. We propose to dispose of both the matters by this single judgment.

3. The occurrence had taken place during the month of Ramazan at Aftar' time near a water tank situate in, village Samandi at a distance of about two miles from Police Post Abbasa. The F.I.R. was lodged by Mashal Khan, brother of the deceased, in his house at 11-30 p.m. which was recorded by Muhammad Ayaz Khan,. A.S.-I. Police, Post Abbasa (P.W.5) in the shape of a Murasila on the basis of which` a formal F.I.R.` was drawn up at Police Station Dadiwala on 5-6-1985.

4. The facts of the case as highlighted in the Murasila are that on the eventful day shortly before after time the complainant Mashal Khan and his brother Izzat Khan deceased and nephew Masood Khan were present near the water tank and the deceased being a Valveman of the. Public Health Engineering Department was opening the valve for supply-of water 'to village Gullapa. Taking exception, Sher Ali khan accused asked the deceased to desist from opening the valve of village Gullapa and disturbing the supply of water to village Samandi on which an altercation took place between them which led to exchange of abuses; Sher Ali Khan commanded his brother Muhammad Nawaz Khan and Mashal Khan, who were present at the spot armed with Topaks, to kill Izzat Khan on which Muhammad Nawaz fired a shot at the deceased but missed the target. Thereafter, Mashal Khan fired a shot at the deceased effectively. The complainant and his nephew Masood Khan escorted the injured to their house and immediately thereafter Amir Jan, Mumtaz, Aslam Khan, Abbas Khan, Dil Jan and Sattar Khan started firing which continued for a long-time as a result of which Bahadur Khan and Gulnawaz sustained injuries. The deceased succumbed to his injuries after half an hour. There was no previous enmity between the parties.

5. Autopsy on the dead body of the deceased was held by Doctor Hidayatullah Khan (P.W.7) on 5-6-1985 who found the following:--

External:

(1) One fire-arm inlet wound -1/8" x 1/8" in the enguinal region midway between pubic bone and illiac crest.

(2) One fire-arm exit wound 1 " x 1 " on the right buttock 1 " away from Ischium.

Internal:

Abdomen, walls, peritoneum, large intestines and urinary bladder were injured while right iliac bone was fractured.

In his opinion, the death had occurred as a result of injury to the pelvic vessles (iliac and fomiral) bleeding and shock. Probable time between injury and death was one and a half hour while between death and p6st-mortem examination 14 to 16 hours.

6. The two injured were, sent to the hospital on the very day of the occurrence where they were medically examined by the same doctor who found the following injuries on the person of Bahadur Khan:--

Wounds:

(1) One fire-arm inlet wound on the back of the right palm 1/8" x 1/8". .

(2) One fire-arm outlet wound in centre of the font of the right palm 1 /7" x 1/7".

(3) One fire-arm inlet wound 1/8" x 1/8" on the outer side of the right hip.

(4) One fire-arm inlet wound on the outer side ~f the middle of the right thigh. .

(5) One fire-arm exit wound 1/7 x 1/7" on the middle of the inner side of the right thigh.

(6) One fire-arm inlet wound on the middle of the inner side of the left thigh 1/8" x 1/8".

(7) One fire-arm exit wound 1/7" x 1/7" on the outer side of the middle of the left thigh 1/8" x 1/8".

Probable duration of the injuries was opined as 6 to 8 hours while kind of weapon used was declared as fire-arm.

7. The medical examination of Gul Nawaz disclosed the following injuries:--

Wounds:

(1) One fire-arm inlet wound in the left anti-axillary line in 10th intercostals space 1/8" x 1/8"..

(2) X-raja shows a pellet in the abdomen.

Nature of injury was held as grievous, probable duration of injury within 6 to 8 hours while the kind of weapon used was opined as fire arm.

8: To prove its case, the prosecution examined thirteen witnesses, namely, Asmatullah Khan, S.H.O. (P.W.1), Muhammad Yousuf H.C. (P.W.2), Muhammad Yousaf, I.H.C: (P.W.3), Sardar- Nawaz; Moharrir (P:W.4), Muhammad Ayaz, S.H.O. (P.W.5), Muhammad Nawaz (P.W.6), Dr. Hidayatullah Khan (P.W.7), Sahib 'Noor (P.W.8), Nasrullah F,C. (P.W.9), Mashal Khan (P.W.10), Masood Khan (P.W.11), Gul Sher Khan, A.S.-I. (P.W.12) and Farooq Ahmad Jan, S.D.P.O. (P.W.13) Of them while Mashal Khan and Masood Khan furnished ocular evidence and Muhammad Ayaz furnished details of the investigation carried out by him. Farooq Ahmad Jan deposed about the investigation conducted by him in regard to the plea of alibi taken by the appellant Mashal and the rest gave evidence of formal nature. After the close of .the prosecution evidence the request made by the accused in writing for recording the statements of three persons as Court-witnesses was granted and the statements of Ala-ud-Din (C.W.11 and the two injured Bahadur Khan. (C.W.2) and Gul Nawaz (C..W.3) were recorded.

9. The appellants and their acquitted co-accused pleaded innocence when examined under section 342, Cr.P.C. and attributed their involvement in the case to false implication. However, they neither produced any evidence in defence nor examined themselves on oath under section 340(2), Cr.P.C.

10. The appellants were convicted by the learned trial Court on the straight of the ocular evidence furnished by the complainant Mashal Khan and his nephew Masood Khan and the corroborative evidence consisting of the post- mortem report and their abscondence. The acquitted co-accused of the appellants were held not guilty for the reason that they were not charged either by Mashal Khan and Masood Khan or by the two injured witnesses Bahadur Khan and Gul Nawaz.

11. It was contended by the learned counsel for the appellants that the prosecution had failed to prove its case beyond any reasonable doubt in that there was inordinate and unexplained delay of more than three hours in lodging the F.I.R.; that the F.I.R. was lodged on the spot after consultations and preliminary investigation; that the prosecution story besides being queer was incompatible with the site plan; that the ocular evidence was highly blemished as the complainant and his nephew were not only closely related to the deceased but were also trumped up witnesses; that there was no evidence on record to substantiate the assertion that the deceased was employed by the Public Health Department as a Valveman; that the plea of alibi of the appellant. Mashal Khan was fully established; that the two injured witnesses Bahadur Khan and Gul Nawaz Khan had belied the prosecution version but the impact of their testimony was ignored by the learned trial Court; that the eye-witnesses had made improvements at the trial to bring the prosecution story in line with the site plan; that the deceased had succumbed to his injuries after sufficient time but had not made an oral dying declaration; the abscondence by itself was not sufficient for conviction and that the investigation was not above board.

12. The learned Assistant Advocate-General supported the trial Court's judgment. His stand point was that there was no previous enmity between the parties, therefore, the delay in lodging the F.I.R. was immaterial, the eye witnesses were worthy of credence and their testimony was corroborated by the abscondence of the appellants and the defects in their statements pointed out by the learned counsel for the appellants were too trivial to reflect on their veracity.

13. The learned counsel for the petitioner in the criminal revision contended that the grounds of acquittal of Abbas Khan etc. were fanciful because they too had remained absconders for a noticeable period.

14. We tend to agree with the learned counsel for the appellants that the prosecution story in too odd to stand to reason. The occurrence had taken place in the month of Ramazan a little before Aftar time. At that time both the parties were supposed to be present in their houses and not at the water tank particularly when it is not the prosecution case that they were making ablution. There is also nothing on the record to show that the deceased was a Valveman and used to open the valve meant for supply of water to village Gulapa at Aftar time. According to the site plan the valve and the water tank are 219 paces apart, therefore, even if the deceased is believed to be Valveman and the presence of the parties at the water tank is presumed the occurrence did not take place in the manner described in the F.I.R. and for this very reason the eye-witnesses made a modification in the prosecution story at the trial that after the exchange of hot words between the deceased and Sher Ali Khan they and the deceased had met out for their house and while they were going to their house the deceased was fired at by the appellants on the exhortation of Sher Ali Khan.

15. The house of the complainant party is situated at a distance of two or two and half miles from Police Post Abbasa but none of the companions of the deceased cared to go to the police post to set the machinery of law in motion against the culprits. The F.I.R. was recorded by Muhammad Ayaz Khan, A.S.I. in the complainant's house at 11-30 p.m. There was thus a delay of at least three hours in lodging the F.I.R.' for which no explanation muchless plausible was given in the F.I.R. The obvious that follows is that the F.I.R. was lodged after consultations and deliberations and the complainant party had ample time at its disposal to fabricate a story. No doubt there is no previous enmity between the parties but this circumstance cannot make the F.I.R. sacrosanct in view of the odd nature of the prosecution story. It is in the statement of Muhammad Ayaz Khan that on hearing the reports of fire-arm in the police post he had left for the village of the complainant party, therefore, we see no reason A to disagree with the learned counsel for the appellants on the point that the F.I.R. was recorded after preliminary investigation and as such its authenticity was questionable.

16. Coming to the ocular evidence we find that it does not inspire confidence. Both the eye-witnesses are not natural and probable witnesses for the simple reason that their presence near the water tank at the crucial time does not appeal to reason. Their failure to go to the Police Post Abbasa to lodge the report also goes a long way to suggest that they were not present at the spot. They also modified and improved the prosecution story set up in the F.I.R. by stating that the occurrence had taken place while they were going to their house and after leaving the deceased in an injured condition in the house they had come out and thereafter the accused other than the appellants had started firing. The first modification was made by them with utmost facility in order to snychronize the prosecution story with the site plan but when Masood Khan realised that the deceased was hit on the front side of his body he made another improvement that while they were going to their house after exchange of hot words between the deceased and Sher Ali Khan the latter raised a Lalkara on which they turned around and then the deceased was fired at by the appellants. Their statements do not ring true intrinsically therefore no corroborative evidence howsoever strong it may be can make them worthy of credence.

17. The plea of alibi taken by Mashal Khan appellant has no substance inasmuch as the statement of Farooq Ahmad Jan, Assistant Director Anti -Corruption (P.W.3) makes it manifest that the entry in the Daily Diary of S.P.L. Dera Tang on which it was based was made by means of interpolation.

18. In so far as the abscondence of the appellants is concerned it is meaningless because it can neither remove the defects of the oral evidence nor is by itself sufficient to justify conviction.

19. The grounds of acquittal of the respondents Abbas Khan etc. cannot be called fanciful or perverse. They were neither charged by the eye witnesses nor Bahadur Khan and Gul Nawaz who have attributed their plight to cross-firing between the parties. There is thus no substance in the revision petition.

For the foregoing reasons this appeal is accepted, the conviction and sentences of the appellants are set aside and they are acquitted of the charge levelled against them. They are in custody and be set at liberty forthwith if not required in any other case. Their acquittal shall have no bearing on the merits of the case of their absconding co-accused. The criminal revision stands dismissed.

N.H.Q./2005/P Appeal accepted