DAREY KHAN AND Another vs The STATE

1. ANWARUL HAQ, J.-The two appellants, Darey Khan and his brother Abdul Jalil, were convicted under section 302/34, P. P. C. By the learned Sessions Judge, Peshawar, for the murder of one Ranra Khan and sentenced to death. In appeal their convictions were maintained by a Division Bench of the Peshawar High Court by its order dated the 18th of November 1970, but the sentence of Abdul Jalil was converted into one of transporta--petition for life on the ground that being the younger brother he appeared to have acted under the influence of Darey Khan.

2. The case for the prosecution was that there was enmity between the parties owing to the murder of Jamil, a brother of the appellants, 8 or 10 years ago by Nek Amel, father of Faqir Mohammad (P.

3. W. 1) and two others. Nek Amal absconded while the others were acquitted. Nek Amal was a first cousin of Ranra Khan deceased. It was also alleged that there were other disputes between the two families over land and women.

4. On the 24th of June 1968, the deceased Ranra Khan was busy at his threshing floor in village Adezai when at digarwela the two appellants fired a shot each with their rifles at the deceased, mortally wounding him. The deceased was immediately taken on a cot to Mattani Police Station, at a distance of three miles, where he himself reported the incident at 7-30 p.m.

5. The deceased was examined by Dr. Nazir Ahmad Khan at 9-20 p.m. When he was still alive. He died in the hospital the same night at 10-30 p.m. The post-mortem examination showed that the deceased had sustained only two injuries on his person :---

(i) A firearm entrance wound on the front of the right thigh near anterior superior iliac crest.

(ii) A firearm wound of exit on the back of left buttock.

6. Both femur and ischial bones were found fractured. The hip-joint was found dislocated. In cross- examination the doctor expressed the opinion that both the injuries on the deceased were caused by a single shot.

7. The Investigating Officer, Shaida Muhammad Khan (P. W. 11), found, on spot inspection, that a bullet had hit the wall of the house of one Saadullah, towards the east of the spot where blood was found, and two pieces of bullet were recovered from there.

8. The appellants pleaded not guilty at the trial, and asserted that they had been falsely implicated owing to enmity and suspension. Regarding the allegation that they had absconded after the crime and were not available .For nearly nine months, they stated that they had gone to Karachi in search of employ-- went and they surrendered of their own accord of their Implication in this cast.

9. The conviction recorded against the appellants is based on the ocular testimony of Faqir Mohammad (P. W. 1) and Saifur Rahman (P. W. 8) as well as the dying statement made by the deceased himself. Corroboration has been found in the recovery of two pieces of a bullet which had hit the wall of the house of Saadullah, and the fact that the appellants had absconded for a period of nine months after the commission of the crime.

10. It is contended by the learned counsel for the appellants that the presence of enmity and blood feud being admitted between the parties, no reliance could be placed on the eye-witness account furnished by Faqir Mohammad and Saifur Rahman, who are closely related to the deceased, unless satisfactory corroboration was available. It is next contended that the medical evidence clearly contradicts the ocular testimony as well as the dying statement inasmuch as the two injuries found on the deceased were the result of only one shot, whereas the witnesses and the deceased have asserted that both the appellants had fired and both the shots had hit the deceased. Finally, it is submitted that the shots having been fired from behind the hay-stacks the assailants could not have been identified by the deceased or by the witnesses present at the time of the occurrence.

11. After hearing the learned counsel for both sides and perusing the evidence brought on the record we are inclined to the view that there is merit in the submissions made by Mr. Ziauddin. The medical evidence leaves no doubt whatsoever that the deceased was hit by only one shot, as out of the two injuries found on his person one is a wound of entrance and the other is a wound of exit.

12. Such being the case, the medical evidence clearly contradicts the account given by the eye- witnesses as well as by the deceased himself in his dying statement to the effect that both the appellants had fired one shot each, and that both the shots had hit the deceased. This contradiction creates a reasonable doubt as to the participation of both the appellants in the crime.

13. This doubt is further strengthened by the fact that the broken pieces of only one bullet were found from near the wall at the end of the threshing floor. If indeed two shots had been fired, the second bullet could not have disappeared after passing out of the Body of the deceased. The learned counsel appearing for the State submitted that the bullet might have landed in the hay-stack and could not, therefore, be traced. It seems to us that the prosecution cannot find support from such conjectures. The proved facts are that the medical evidence shows that only one shot hit the deceased, and this fact appears to be confirmed by the recovery of broken pieces of only one bullet. In this state of the record 9t would be highly unsafe to hold that both the appellants participated in the assault or that each fired one shot at the deceased.

14. Then there is the undoubted fact that the shots came from behind the hay-stacks. The High Court has recorded a finding that "the seat of the injury is indicative of the fact that the deceased was not fired at by a person standing, but in all probability the assailant was squatting on the ground when he fired at the victim." This finding lends support to an argument, presented on behalf of the appellants, that the shots must have been fired by a person taking shelter behind the hay-stacks, thus successfully concealing his identity from the deceased and the witnesses.

15. When the ocular evidence of interested and inimical witnesses is viewed in the light of the glaring contradiction between the account furnished by them and the medical evidence, the recovery of only one bullet from the spot, and the presence of hay-stacks affording opportunity to the assailant or assailants to conceal his or their identity, the case against the appellants becomes highly doubtful. For the same reasons it becomes unsafe to rely on the dying statement made by the deceased. We would accordingly accept this appeal, set aside the conviction and sentences of the appellants and acquit them. They shall be set at liberty forthwith provided that they are not required to be detained in any other connection.