ZALEY MIR ALIAS ZALEY Versus THE STATE

SARDAR MUHAMMAD RAZA, J.- -- This is an appeal by Zaley Mir alias Zaley son of Mir Dad Khan resident of Bazida Michen Khel Police Station Ghoriwala Tehsil and District Bannu against the order, dated 31-11-1991 of the learned Sessions Judge, Bannu, who convicted the appellant under section 302/34, P.P.C. and sentenced him to an imprisonment for life with a fine of Rs.40,000 etc. This was with reference to F.I.R. No.252, dated 16-9-1986 of Police Station Ghoriwala in which Mir Piao Khan complainant had reported the death of his son Gul Raqeeb Khan who was killed by the present appellant and his son-in-law namely Pir Muhammad by firing.

2. A brief and relevant flashback is that on 16-9-1986 at Deegar Qaza Wela complainant Mir Piao Khan alongwith his son Rasool Khan and their bullocks was coming back from the field having fetched fodder. When they reached near Mama Khel Canal, they saw Gul Raqeeb Khan, the son and brother respectively of the complainant and Rasool Khan offering prayers. Zaley Mir and his son-in-law Pir Muhammad appeared on the scene duly armed with rifles and stood at the bridge over the canal. One after the other they fired one shot each at Gul Raqeeb Khan with which he fell down. Another shot was repeated by each one of them, which too hit the target. Gul Raqeeb Khan fell down and died on the spot. Both the assailants decamped from the spot while Mir Piao Khan rushed to lodged a report before the S.H.O. whom he met in the Adda of Village Ghoriwala at 7-00 hours.

3. Pir Muhammad accused was arrested on 29-12-1986, stood the trial when Zaley Mir was absconding, was convicted and sentenced to life imprisonment by the learned Sessions Judge, Bannu which was upheld by this Court on 3-10-1989. It was subsequently after about four years and two months that the present convict Zaley Mir was arrested, tried and convicted and hence this appeal.

4. After having gone through the record, the peculiar circumstances of the case, the conviction of the co-accused Pir Muhammad we are of the view that certain, matters require to be seriously attended to. The noteworthy feature of the case is that the complainant Mir Piao Khan was dead at the time of second trial and hence his statement at previous trial was brought under consideration in the instant trial where only Rasool Khan was examined as eye-witness once again.

5. One cannot loose sight of the fact that the complainant and his son were returning from fields at Deegar Qaza Wela, which according to season involved comes to about 18-15/18-25 hours. It is not known as to what physical disability or inability the deceased had so as to offer such a late prayer. The time of offering prayers Deegar. is quite meaningful. According to post-mortem the deceased had semi-solid food in the stomach which condition is reached in the normal digestion- after two hours at the most. This brings the taking of meals by the deceased to. 16-15/16-25 hours, which in a village is neither the time for lunch nor dinner. The possibility cannot be ruled out that after having taken the meals at 11-00 hours, which every villager would do, the deceased was done to death at about 13-00/13-30 hours, which might as well be a proper time for Peshin prayers. This raises a strong doubt that considerable time might have been wasted in consultation and deliberations, the need wherefor arises only when the occurrence is unseen.

6. No bullocks were ever shown to the Investigating Officer with which the complainant etc. were returning home. No fodder having ever cut or brought home was ever shown to the Investigating Officer nor did the latter recover any. The place where the fodder had been cut from, according to evidence, is about 160 paces away from the spot but no such place was ever shown to the Investigating Officer. Grass or fodder are always cut with sickles etc. that must have been carried by both the father and the son but no such implement was ever shown to or recovered by the Investigating Officer. All these circumstances go to lay a compulsion on us to not to take the statement of the complainant for granted and it must be with a pinch of salt that it be taken. This becomes all the more necessary when the two eye-witnesses are closely related to the deceased. This is also necessary while keeping in view the motive, which is available to everybody against everybody, if at all.

7. The Honourable Division Bench of this Court that upheld the previous conviction of Pir Muhammad co-accused was of the view that whenever there is some minor discrepancy in the medical evidence, it requires to be ignored in comparison to the ocular testimony. With utmost regards to the reasonings advanced by the learned Division Bench, we propose to differ in view of the above cited circumstances that rendered the matter at least so doubtful so as to persuade us to find corroboration for the ocular testimony, Both the parties belong to the same cross-section of the people with identity of actions and reactions and similarity in the force of emotions. If one person on mere quarrel of women-folk which too had taken place about four months ago, can resort to killing, the other person can rather better resort to false implication. So in these circumstances we should altogether forget that the eye-witnesses had no direct enmity with the accused in order to be dubbed as interested witnesses.

8. With this idea in the background and with such yardstick in mind- if we revert to the post-mortem examination, we fail to account for the injuries caused in the thigh. If the site plan (Exh. P.K.) is kept in juxtaposition with the pictorial (Exh.P.M.I/1), one is confronted with a stunning contradiction LO tie effect that according to the post-mortem examination and direction -of injuries, the assailants were either located to the left of the deceased or4oithe half left back, whereas, according to the site plan i.e. the version of the eye-witnesses, both the assailants were to the right of the deceased. This is such a glaring contradiction, which cannot at all be ignored if one is reminded of a reality that men may tell a lie but the circumstances do not.

9. Unfortunately, the instant one is a case where nothing is found in support of the ocular version. The two empties found on the spot were never sent to the Fire-arm Expert at least to get it ascertained that those were fired from two different weapons and that there were two assailants. In the F.I.R. it is only mentioned that the assailants were duly armed. No description of weapon is given while in Court statement, it is sometime alleged that both had rifles of .303 bore and sometime it is alleged that one had a .303 rifle while the other had a .7 mm rifle. This discrepancy is brought on purpose to cover the difference in the dimensions of wounds given in the medical report as 1/8" x 1/8" and 1/9" x 1/9", whereas the fact remains that a rifle of .303 bore or that of .7 mm invariably cause an inlet wound of a measurement of 1 /4" x 1 /4". On the other hand the measurement of 1/8" x 1/8" or 1/9" x 1/9" is always that of a pellet.

10. The above strong circumstantial controversy in case leads to the most obvious consequences, firstly, that there was a substantial delay of about 5 to 6 hours in lodging the F.I.R. that had resulted in consultations and deliberations in an effort to cover up the above lapses and laxities. Secondly that all these things were done only and only because of fact that the actual occurrence was unseen otherwise the close relatives of the deceased would never have been spared in order to depose against the assailants. The case is not free from very strong pieces of doubt.

11. The only thing that goes apparently against the appellant is the prolonged abscondence of about four years. As we are of the view that this is an unseen occurrence and as the prosecution has failed to prove the case beyond any shadow of doubt, the abscondence by itself carries no importance especially when the co-accused had already got convicted and when an option to surrender would have certainly resulted into conviction, as it partically happened in case of the appellant. So the prolonged abscondence and that too by itself, in the instant case would not matter much. While parting with the discussion it may be reiterated that the motive in the present case, prevailed more with Pir Muhammad convict directly rather than with the appellant Zaley Mir.

As a sequel to our above discussion we are of the firm view that the instant case is full of material doubts qua the presence of the eye-witnesses. The appellant Zaley Mir, being given the benefit of doubt, is hereby acquitted of the charge under section 302/34, P.P.C. If not required to be detained in any other case, he be released forthwith.

N.H.Q./2059/P Appeal accepted.