MUHAMMAD AMIN Versus THE STATE
MALIK HAMID SAEED, J.--- Muhammad Amin aged about 17/18 years, appellant herein, and his father Mubarrik Shah, aged about 60/65 years, residents of village Abba Khel, Tehsil and District Lakki Marwat, were tried by the learned Additional Sessions Judge, Lakki Marwat, on the charge that they in furtherance of their common object committed the murder of deceased Jamil Khan by firing at him vide F.I.R. No.65, dated 1-2-1991 registered at Police Station Lakki, under section 302/34, P.P.C., at the behest of Nawaz Khan son of Shahabuddin, complainant of the occurrence. After conclusion of the trial, accused Mubarrik Shah was acquitted of the charge by giving him the benefit of doubt, while his son Muhammad Amin was found guilty of the murder of the deceased and on conviction sentenced him to undergo rigorous imprisonment for life with a fine of Rs.30,000 or in default thereof to further suffer simple imprisonment for one year. On realization, the fine was ordered to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. vide judgment, dated 19-9-1994.
2. Not contented with the aforesaid judgment of the learned trial Judge, Muhammad Amin accused has challenged his conviction and sentence through Criminal Appeal No.32 of 1994, while the complainant Nawaz Khan too feeling aggrieved from the conclusion drawn by the lower Court has filed Criminal Revision No.12 of 1994 for retrial of acquitted accused Mubarrik Shah and enhancement of sentences awarded to the appellant Muhammad Amin. Since both the matters are the outcome of one and the same incident, therefore, we propose to dispose of the same through this single judgment.
3. The prosecution case, as gleaned from the first information report, Exh.P.A. is that on 1-2-1991 at 'Digar Qaza Vella' Nawaz Khan complainant made a report in the Police Station Lakki Marwat to the effect that on the eventful day at 19-00 hours he along with his son Jamil Khan, brother Gul Nawaz and nephew Naimatullah Khan were on their way towards their house situated in village Kaka Khel for inquiring about the ill-health of his another brother named Abdullah Khan. When walked for half a mile, Jamil Khan deceased wanted to urinate. No sooner, we went ahead and Jamil Khan remained behind, report of fire shots was heard and Mubarrik Shah armed with .303 bore rifle and his son Amin armed with a D.B. shotgun were seen running. When the complainant along with his companions reached near Jamil, he succumbed to the injuries and took his last breath. No motive was given for the occurrence which was stated to have been witnessed by the complainant and his companions.
4. In order to prove its case, the prosecution examined ten witnesses. Of them, P.W.I, namely, Gul Nawaz Khan, D.F.C. was entrusted with the warrants of arrest, Exh.P.W.I/1 and Exh.P.W.I/2, under section 204, Cr.P.C. against both the accused. Since they were avoiding arrest, therefore, proclamation notices under section 87, Cr.P.C. Exh.P.W.l/3 and Exh.P.W.l/4, were issued against each of them and handed over to the said prosecution witness.
5. P.W.2, namely, Doctor Ghulam Nabi Khan, has conducted autopsy on the dead body of the deceased Jamil Khan and on external examination found the following injuries on his person:-- .
External examination:
(1) Three entrance wound of fire-arm on the anterior surface of the left side of chest about 4" below and lateral to the left nipple within an area of 2" x 2" in size of 1/4" x 1/4". Skin muscle and cavity deep.
(2) Three entrance wound of fire-arm on the lateral surface of the chest about 4" to the left of the left nipple within an area of 2" x 3" size of each wound is 1/4" x 1/4". Skin muscle and cavity deep.
(3) Eight entrance wound of fire-arm at the left buttock within the area of 5" x 5". Size of each wound is 1/4" x 1/4". Skin muscle and bone deep.
(4) Five exit wound of fire-arm at anterior surface of the upper part of the left thigh size of each wound is 1 /4" x 1 /4".
(5) An exit wound of fire-arm at the medial boarder of the right scapula at the level of fifth theracic vertibra size is 1/4" x 1/4".
(6) An exit wound of fire-arm at the medial boarder of the left scapula at the level of sixth theracic vertibra size is 1/4" x 1/4".
(7) An exit wound of fire-arm at the medial boarder of the right scapula on the level of fifth theracic vertibra size is 1/4" x 1/4".
(8) An exit wound of fire-arm about one inch to left of vertibra column on back at the level of ten theracic vertibra. Size is 1/2" x 1/4".
On internal examination, the doctor had found the walls of the deceased injured. Sixth and seventh left theracic ribs fractured, plurea left lung and blood vessels of chest injured. Stomach was found healthy containing fluid juices. Left famur was also found fractured.
4. In opinion of the doctor, death of the deceased had occurred as a result of injury to vital organs, i.e. left lung, theracic etc.; causing harmorrhage shock. A sealed bottle containing six pellets weighing 300 grains was recovered during post-mortem examination of the deceased. Probable time that elapsed between injury and death was opined as 5 to 10 minutes while that between death and autopsy 15 to 16 hours.
5. P.W.3, namely, Muhammad Saeed had identified the dead body of the deceased who was the son of his maternal-uncle. P.W.4, namely, Shah Wali Khan, is a marginal witness to the recovery memo. Exh.P.W.4/1 vide which the Investigating Officer had taken into possession a shirt Exh.P.1, a Shalwar Exh.P.2, a Banyan Exh.P.3 having cut marks and blood-stained belonging to the deceased, a sealed phial Exh. P.4 containing six pellets. He is also a marginal witness to the recovery memos. Exh.P.W.4/2, Exh.P.W.4/3, Exh.P.W.4/4 and Exh.P.W.4/5, vide which the Investigating Officer had taken into possession one empty shell of .12 bore (Exh.P.5), twenty-two card-boards (Exh.P.6), a pellet of .12 bore shotgun (Exh.P.7) and blood-stained sand and blood-stained leaves of trees from the place of the deceased.
6. P.W.5 namely, Nawaz Khan and Naimatullah Khan, P.W.6, are the eye-witnesses f the occurrence who have almost supported the complainant and the averments made in the F.I.R. P.W.7, namely, Sadullah Khan, Constable No.861 had accompanied the dead body of the deceased from the police station to the hospital for post-mortem examination. P.W.8, namely, Habibullah Khan, A.S.-I. had investigated the case after the S.H.O. who had recorded the statement of the complainant and prepared the injury sheet and inquest report of the deceased. This witness had completed all the requisite formalities of the case. He had submitted supplementary challan, dated 1-6-1992 against the accused t before the Court.
7. P.W.9, namely, Sultan Khan, Ex-S.H.O. had registered the case on the report of complainant Nawaz Khan. He had prepared the injury sheet Exh.P.M./2 and inquest report, Exh.P.M./3 and had submitted complete challan under section 512, Cr.P.C. against the accused.
8. P.W.10, namely, Muhammad Farid Khan was posted during the days of occurrence as S.H.O. Police Station Lakki, before whom accused Mubarrik Shah surrendered himself who was accordingly arrested and prepared his card of arrest, Exh.P.W.10/1. He had also submitted supplementary challan against him.
9. Appellant in his statement under section 342, Cr.P.C. has denied the prosecution allegations and proclaimed innocence.
10. Mr. Dost Muhammad Khan, counsel for the appellant confined his arguments to the evidence of P.W.5, Nawaz Khan, the complainant, P.W.6 Naimatullah, the alleged eye-witness and P.W.8 Habibullah Khan, A.S.-I. who had conducted investigation of the case and has strongly criticized their testimony. His contention was that the eye-witnesses are not only interested and partisan, but are untrustworthy, liers, unreliable and as such their evidence requires very strong corroboration to sustain conviction thereon. Occurrence at the place shown in the case is not disputed by the learned counsel for the appellant, as the Investigating Officer recovered blood-stained sand and leaves etc. therefrom, but doubted the narration of the incident put forth by the prosecution. He argued that the alleged eye-witnesses have made improvements in their statements, as the complainant in his first information report had stated that:-- and in his supplementary statement recorded on the following day coupled with that of P.W.6 named Naimatullah Khan recorded under section 161, Cr.P.C. they have taken the same stance, but in their Court statement an altogether different stand has been taken by both of them by stating that they have seen the accused firing at the deceased. The learned counsel classified the witnesses into three categories; namely, (i) absolutely dependable, (ii) partially dependable and (iii) Independable. According to him witnesses of the instant incident fall under the third category as they have made various somersaults in their narrations. At first instance they had stated that the appellant was seen running from the spot after firing at the deceased, while during trial they changed their version by attributing the effective shot to the appellant. He was of the view that the improvements were made in order to bring conformity in the medical and prosecution evidence. He argued that the report was lodged after a considerable delay, as in the body of the F.I.R. has been mentioned and in the heading thereof, the time of occurrence is given as which further gets support from the statement of P.W.6, Naimatullah Khan who has stated that the dead body of the deceased was brought to village where all the relatives were gathered and after discussing the occurrence for one and a half hour the report was lodged after consultation and deliberation amongst the relatives. The learned counsel further pointed out that house of father of P.W.6 Naimatullah namely Abdullah has not been verified by the Investigating Officer nor he has taken any evidence to. verify the ailment of said Abdullah. He argued that if a fact is relevant to a fact-in-issue, then it was incumbent upon the prosecution to bring on record some evidence about the said fact and, therefore, proper and fair investigation in the case has not been carried out.
11. His last contention was that as per site plan, distance between the deceased and appellant is shown to be more than 30 feet and according to medical report, injuries Nos. l and 2 are on front of chest within an area of 2" x 2" and 2" x 3", while the third injury is on thigh in size of 5" x 5". Tylor in his book at page 245 and Modi at pages 229 and 230 have opined that if a person is fired from a distance of 30 feet, the spread of pellets would take an area of 12" x 15" on the body of the victim and, therefore, ocular evidence is completely in conflict with the medical evidence. He vehemently stressed that the entire prosecution case is full of doubts and a single doubt in a criminal case entitles the accused for acquittal.
12. In reply, the learned State Counsel argued that the F.I.R. was lodged promptly without deliberation and consultation and the occurrence is duly witnessed by two independent witnesses. He supported the impugned judgment and opposed the criminal revision filed by the complainant for enhancement of the sentences awarded to the accused/appellant.
13. The learned counsel appearing for the complainant, however, submitted that the prosecution case was supported by two eye-witnesses who had accompanied the deceased at the time of occurrence. He though conceded that the said two witnesses had made improvements in their statements at trial, but deposed that such improvements could be ignored in the circumstances when the appellant armed with a shotgun at the spot is proved from circumstantial evidence and further recovery from the spot proves that the deceased was done to death by fire shots fired by the accused/appellant.
14. We have minutely considered the respective arguments advanced on either side and carefully examined record of the case with their valuable assistance. We find that the prosecution's case is full of doubts and discrepancies. The inherent infirmities in the prosecution's case throws a shadow of doubt on the veracity of the alleged eye-witnesses. They are closely related to the deceased and have not supported the F.I.R. in toto, as in their statement under section 161, Cr.P.C. have deposed that the accused/appellant was seen running after hearing the report of fire-shots and have not seen him while firing at the deceased, but being his relatives have made improvements therein. Though plausible explanation is available on record for the delay in lodging the report, but admission by P.W.6, namely, Naimatullah, in his statement to the effect that all the relatives of deceased gathered and consulted each other about the occurrence for one and a half hour casts serious doubts about the prosecution case. In fact, there is no evidence at all to sustain conviction of the appellant on the material brought on record which are full of doubts and infirmities. Above all, co-accused of the convict-appellant, namely, Mubarak Shah, was acquitted by the trial Court on the same evidence and, as such, the appellant also deserved the same treatment.
15. The factum of absconsion of the convict-appellant and his father, acquitted co-accused was also considered a fact to establish the guilt of the appellant. Nevertheless, it is an established principle of administration of criminal justice that mere abscondence is not enough to sustain conviction thereon. The prosecution's case suffers from improbabilities and conduct of the P.Ws. show that they were interested in conviction of the appellant. It was found an unseen incident and the appellant and his acquitted father were roped in the case after concoction. The ocular evidence was also found in conflict with the medico-legal report. The appellant was admittedly of 15 years age and his allged absconsion, even if proved, would not be of any use because in such a teenage, a human being cannot visualize the effects and consequences of absconsion. Rather the appellant must have been under the influence of his elders. When the alleged abscondence was not taken into account qua his father, the same cannot be used as against the appellant so as to base it for awarding him punishment.
16. As regards motive, it is a double-edged weapon and can be used either way In the instant case, the motive set up during trial is because and is of no help to the prosecution; Firstly because no documentary/oral proof was brought on record to substantiate the plea that the deceaed was done to death due to his purchasing the landed property from the female relative of the accused, and; secondly if it is presumed to be true, then why the complainant had remained mum in his first report, which too was lodged after deliberation and consultation.
17. As a result of the above discussion, we are of the firm view that the prosecution had not been able to prove its case against the convict-appellant beyond any shadow of doubt and, therefore, while accepting his appeal, set aside his conviction and sentence and acquit him of the charge brought against him. He shall be set free forth with if not wanted in any other case.
18. In consequence, Criminal Revision No. 12 of 1994 filed by the complainant for enhancement of the sentence awarded to the accused/appellant and retrial of his acquitted co-accused fails and stands dismissed accordingly.
N.H.Q./2106/P Appeal accepted.