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Criminal Appeal No. 39 of 1985, decided on 17th June, 1986.

‑‑‑S. 307‑‑Evidence, appreciation of‑‑ Benefit of doubt‑‑Case of accused standing on same footing as that of acquitted co‑accused‑‑Reliance of Trial Court on police statement of accused and further making use of it for contradicting his statement under S. 342, Cr.P.C., as well as for discarding statements of his defence witnesses, held, illegal Accused given benefit of doubt and acquitted, in circumstances.

Abdul Hakeem Khan Kundi for Petitioner.

K.G. Sabir, Law Officer for the State.

Date of hearing: 27th May, 1986.

Guldar Khan son of Daulat Khan aged about 60/62 years resident of Kastir Banda, Tehsil and District Karak, who stands convicted and sentenced under section 307. P.P.C., to ten years' R.I. and a fine of Rs.5,000 or in default of payment of fine to suffer further one year R.I. and under section 544‑A, Cr.P.C. to pay Rs.5,000 which on realization shall be paid to the complainant or in default to undergo further imprisonment of six months by the Additional Sessions Judge Karak, vide his order, dated 6‑4‑1985 for attempting at the life of Qadir Khan complainant in the limits of village Kastir Banda, has come in appeal to this Court. The complainant has also filed a revision petition against the said order of conviction for enhancement of sentence of the convict. Both these matters arising out of the same orders are being disposed of, by this single judgment and order.

2. The report of the occurrence was lodged by Qadir Khan (P.W.6) the injured before Khan Wazir A.S.I. (P.W.10) Police Post Shah Salim on 16‑11‑1981 at 1630 hours which was reduced into a Murasila (Exh.P.A./1) and sent to Police Station for registration of the case. On receipt of the Murasila the case was registered, vide F.I.R. No. 91 of Police Station at 2100 hours by Abdul Qayum Khan Sub‑Inspector (P. W.9) at Police Station, Takht Nasrati.

3. The complainant while lodging the report stated that on the day and time of occurrence he alongwith his brother Gul Sharif (deceased) and his father Kalim Shah (P.W.7) were proceeding towards their house. Gul Sharif was ahead of him while Kalim Shah, his father was following him. When they were passing through a thoroughfare near the house of Sial Khan (the absconding accused), he sew Sial Khan, Umar Khan, Abdul Hayee and Gul Said Khan (all absconding accused) coming out of the house of Sial Khan duly armed with Topaks. All the four accused, one after the other fired at Gul Sharif who got injured fell down on the ground and expired at the spot. At that time he was et distance from the deceased when he saw Guldar Khan (the convict), Jamil Khan and Mir Sahib the acquitted accused who were armed coming out of the house of Muhammad Rehman. All the three fired at him but he was hit on his right back ribs with the shot fired by Guldar Khan. Kalim Shah who was following him was stated to have witnessed the occurrence. While giving motive for the occurrence he stated that a few days prior to the occurrence, the cattle s of the accused had damaged the Jawar' crop of the deceased who had made a protest to the accused which they had taken ill. He charged Sial Khan, Umar Khan, Abdul Hayee and Gul Said Khan for the murder of his brother while Guldar Khan, Jamil Khan and Mir Sahib were charged for firing at him. In the concluding part of the report he stated that Gul Sharif Khan was done to death at the order of Gul Rehman son of Daulat Khan.

4. After registration of the case Khan Wazir A.S.I. (P.W. 10) prepared the injury sheet of the complainant and the deceased and also prepared the inquest report (Exh. P.M/2) and despatched the dead body of the deceased to the Civil Hospital Takhti Nasrati for post‑mortem examination. The injuries was referred to doctor for medical examination where after he proceeded to the spot. As it was then night he inspected the spot on the following morning and prepared the site plan (Exh. P.B.) on the pointation of Kalim Shah (P.W. 7). From the spot he took into possession blood‑stained earth (Exh. P.2) from point No. 1 shown in the site plan which was sealed into a parcel. He also recovered six pieces of cardboard (Exh.P.3) from point No. 9 and took it into possession, vide recovery memo. Exh. P.R/6, in the presence of the marginal witnesses. He also recovered four pellets of .12 bore (Exh. P.4) from point No. 6 and took the same into possession, vide memo. Exh. P.R./5 in presence of the marginal witnesses. Subsequently Haq Nawaz Constable (P.W.5) who had accompanied the dead body to the hospital produced a blood‑stained shirt (Exh. P.5), blood‑stained Banyan (Exh. P.6) and a blood‑stained Jacket (Exh. P.7) which were taken into possession, vide memo. Exh. P.R. 3 in presence of the marginal witnesses. He also took into possession a blood‑stained shirt Exh. P.8 and‑.a blood‑stained jacket (Exh. P.9) of the complainant sent by the doctor. During the house search of the accused he recovered one pull through alongwith a piece of cloth Exh. P.10, one empty of .12 bore, giving smell of fresh discharge (Exh. P.11) and one cover of shotgun (Exh. P.12) from the house of Sial Khan absconding accused. These were taken into possession, vide recovery memo. Exh. P.R.7 in presence of the marginal witnesses. He further recorded the statement of the P.Ws. and sent the blood‑stained earth and clothes of the deceased to the Chemical Examiner whose report is in the positive. On his transfer the investigation of the case was handed over to Abdul Qayum Khan Sub‑Inspector (P. W.9) who had earlier registered the case on receipt of the Murasila Exh. P. A./1, vide F. I.R. (Exh. P. A.). He also obtained warrants under section 204, Cr.P.C. against the accused which were returned un-served. Then he obtained proclamations and entrusted the same to Saifur Rehman D.F.C. (S.W.) for execution. He also took into possession a bottle containing a pellet (Exh. P.1) sent by the doctor through Saifur Rehman .D.F,C. (S.W.), vide recovery memo. Exh. P.R./1. On completion of investigation submitted complete challan in Court.

5. Mir Sahib, Khan and the acquitted accused viz. Jamil Khan appeared, on 17‑12‑1981 before the Court and were successful in getting their bail before arrest while bail before arrest was granted to Gul Rehman on 11‑3‑1982. However, Guldar was arrested, on 21‑12‑1981. Rest of the accused are still in abscondence.

6. At the trial after framing of the formal charge against the accused and on their denial of having committed the offence the prosecution relied on the ocular testimony of the complainant and his father Kalim Shah (P.W. 7) and further relied on the recoveries made from the spot, the medical evidence and the abscondence of the accused coupled with the motive given out in the F.I.R. The statement of D.W. in proof of alibi of the accused was not accepted. The learned Additional Sessions Judge who had framed charge against the accused under sections 302/148/149 and 307/149, P.P.C. acquitted all of them of the offences under sections 302/148/149, P.P.C. and 307/149, P.P.C. excepting Guldar Khan accused appellant who was found guilty of an offence under section 307, P.P.C. and on conviction sentenced as stated above.

7. The learned counsel for the appellant has challenged the order of conviction of the appellant on the following grounds:‑‑

(i) That the witnesses on whose evidence reliance has been placed by the learned trial Judge are highly interested, their statements are untrustworthy as they have made material improvement in their statements made at the trial.

(ii) That the site plan and the recovery made from the spot contradicts the prosecution version of the occurrence.

(iii) That the case of the appellant stands at the same footing with the case of those who were charged for firing at the complainant and have been acquitted of the charge.

8. The learned counsel appearing for the complainant and K.G. Sabir, Law Officer for the State, however, in repelling the contentions argued that both the parties are closely related and there is no previous motive to falsely charge the accused for capital offence. The presence of the complainant at the spot is established from the injuries found on his person received in the same transaction as well as by recoveries and the abscondence of the accused.

9. After hearing the learned counsel for the parties and going through the evidence with the help of the learned counsel for the parties; it is evident that Qadir Khan (P.W. 6) the complainant in his statement at the trial fully reproduced the version given in the F.I.R. He was supported on material particulars by Kalim Shah his father (P.W. 7) who stated that he alongwith his two sons, namely, Gul Sharif deceased and Qadir Khan complainant were going from their shop to their house. That Gul Sharif deceased was going ahead followed by Qadir Khan and that the latter was followed by him. That on reaching the house of Sial Khan, he saw accused Gel Rehman (the acquitted accused) standing to the north of the path. In the meantime, Sial Khan, Umar Khan, Abdul Hayee and Gul Said Khan (the absconding accused) came out of the house of Sial Khan and when ordered by Gul Rehman to kill Gul Sharif, all the four accused who were armed with Topaks' fired at the deceased with which he was hit and fell down.

When Qadir Khan P.W, turned back and wanted to run away from the spot, Mir Sahib Khan, Jamil Khan (the acquitted accused) and Guldar Khan (the appellant) came out of the house of Muhammad Rehman armed with 'Topaks' and started firing at Qadir Khan. That he was hit by the shot fired by Guldar Khan. In the cross‑examination of these two witnesses nothing has been brought on the record to discredit their version. We have no doubt in our mind about the presence of the two eye‑witnesses at the spot at the relevant time. We are also not inclined to hold that the witnesses are in any manner inimical to the accused as both the parties are first cousin inter se and there was no motive for false charge. The minor discrepancy in the statements of these witnesses have got no material bearing on the facts of this case. No doubt, both the witnesses have made some improvement in their statement regarding the involvement of Gul Rehman, though he has been named in the concluding part of the F. I. R. that the deceased was fired at his instance which has further been highlighted by the witnesses in their statements given in Court. The learned trial Judge, therefore, due to their improvements extended the benefits of doubt in his favour while ordering his acquittal.

10. In the F.I.R. lodged by the complainant, two different groups of accused have been named, the first one consists of Sial Khan, Umar Khan, Abdul Hayee and Gul Said who are charged for effective firing at Gul Sharif deceased while the second group of the accused consists of Jamil Khan and Sahib Khan (the acquitted accused) and Qadir Khan (the appellant) who were charged for having fired at the complainant. With regard to the first group of the accused as they are in abscondence and, there is no evidence connecting them with the second group of the accused or to attract the application of section 149 , P.P.C. we are, therefore, not going to deal with that part of the case in this appeal and have confined ourselves to the case set up in the latter part of the F.I.R. against the appellant and his acquitted co‑accused. Having held that the two eye‑witnesses have witnessed the occurrence we have next to consider whether in the presence of the order of acquittal of the co‑accused, namely Jamil Khan and Sahib Khan, equally charged by the complainant for firing at him, the order of conviction can be maintained. The, case of the prosecution is that when the complainant turned back in order to retreat he saw the appellant and the acquitted accused coming out of the house of Muhammad Rehman. No doubt, the door of the house of Muhammad Rehman is not visible from the point where the presence of the complainant is shown in the site‑plan. However, it can be said that as the accused came out from the direction of the door of the house of Muhammad Rehman, it was so described as if they had come from that house. It can, however, be said that in view of the natural human conduct, the complainant could not have confronted the accused while running away to save his life. He must have changed his direction on seeing the accused proceeding towards him duly armed with 'Topaks'. We, therefore, feel it difficult to accept that portion of his statement in which he pinpoints and attributes the effective shot to the appellant. The medical evidence also does not support him in this respect. He was found injured on his shoulder meaning thereby that he was not facing the accused at the time of firing which makes it further difficult for him to say undoubtedly that he was hit by the shot fired by the appellant.

11. In this view of the matter the case of the appellant stands the same footing with that of the acquitted accused. The learned Additional Sessions Judge while ordering the acquittal of the two accused did not deal with this aspect of the case and failed to distinguish his case from those of the acquitted accused though in the F.I.R. all the three are charged for having simultaneously fired at him after coming out of the house of Muhammad Rehman. The learned trial Judge while dealing with the case of the appellant in comparing it with that of the acquitted accused observed:‑-

"It is true that blood was not' recovered from the site where the complainant was injured but it is apparent from the evidence that he had received only one injury and that too with a single pellet which stuck in his body. This would not cause profuse bleeding which would have trickled 'down to the earth. However, the non‑recovery of any pellets, car-boards from the spot and the sustaining of a single injury by the complainant makes the story of ineffective firing by accused Jamil and Mir Sahib Khan doubtful. I am convinced on the basis of material available, coupled with the fact of his absconsion from the date of occurrence till his arrest, and the variation in his statement recorded under section 161, Cr. P.C. vis‑a‑vis the deposition of defence witness regarding the plea of alibi, that Gul Dar accused who has been attributed the role of effective firing has participated in the commission of the offence charged for."

In spite of the fact that all the contentions raised by the learned counsel for the defence were rejected, he found the case of the prosecution to the extent of firing by the two acquitted accused doubtful. In arriving at that conclusion and distinguishing the case of the appellant from that of the acquitted accused abscondence of the appellant and variation made by him in his statement under section 161, Cr. P.C. in the light of the deposition of the defence witnesses in proof of the plea of alibi were used against him. Further support was sought for from the charge of effective firing made by the complainant. The learned trial Judge did not address himself to the fact whether in the circumstances of the case the complainant could undoubtedly say that he was hit with the shot fired by the appellant. The learned trial Judge was wrong in basing reliance on the statement of the accused recorded under section 161, Cr.P.C. and using it for contradicting his statement made under section 342, Cr.P.C. or for discarding the statement of the defence witnesses.

12. In our considered view for the reasons stated above, the case of the appellant stands on the same footing as that of the acquitted accused. We, therefore, also extend the benefit of doubt to the accused appellant. Accordingly this appeal is accepted, the order of the learned Additional Sessions Judge, dated 6‑4‑1985, is set aside and the appellant is acquitted of the charge. He may be set at liberty forthwith if not required in any other case. In view of the acceptance of the appeal, the revision petition stands dismissed.

S.G.D. Appeal allowed.

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