SAAD SAOOD JAN, J.---The appellant, Mohammad Nawaz (aged 33 years) was convicted by the Additional Sessions Judge at Jhang for offences under sections 302, 307 and 449 of the Pakistan Penal Code. For the offence under section 302 he was sentenced to death and asked to pay a fine of Rs. 5,000, or to suffer further rigorous imprisonment for a period of two years. In respect of the other two offences he was sentenced to rigorous imprisonment for a period of 7 years and a fine of Rs. 1,000, separately on each count. In default of the payment of fine he was to undergo further rigorous imprisonment for a period of six months. Along--with him his brothers, Mohammad Ghaus and Mohammad Anwar, were also tried but they were acquitted by the learned Additional Sessions Judge. The appellant has filed this appeal against his conviction and sentences and the learned Additional Sessions Judge has also made a reference to this Court for the confirmation of the sentence of death imposed upon him. This judgment will dispose of both these matters.
2. Ghulam Ali (P. W. 6), father of Liaquat deceased, is the real paternal uncle of the appellant. The relations of Ghulam Ali (P. W. 6) with the father of the appellant became extremely strained when the two brothers decided to partition the ancestral land between themselves. There were some criminal cases registered at the instance of one brother against the other. A month prior to the occurrence the local police initiated proceedings under section 107/151 of the Code of Criminal.
Procedure against the families of the two brothers.
3. According to the prosecution, on the night between 16th and 17th of April, 1974, Ghulam Ali (P. W.
6) was present in the courtyard of his haveli with his wife, Mst. Bakhi, and his sons Said (P. W. 7), Faiz (P. W. 8) and Liaquat deceased. About a week earlier the deceased had been circumcised. At about 4 or 4-30 a.m. The appellant and his brothers entered the courtyard by jumping over the wall of the haveli. The appellant and Mohammad Anwar were carrying guns while Mohammad Ghaus had a pistol with him. At that time Ghulam Ali (P. W. 6) and his wife were already awake and were attending upon the deceased. On seeing the appellant and his brothers they raised an alarm. This woke up Said (P. W. 7) and Faiz (P. W. 8) also. Mohammad Anwar fired at Said who ran to a nearby room and took shelter there. After that the appellant and Mohammad Ghaus fired at Liaquat deceased. The deceased was hit and he died a few minutes later. The appellant then fired at Ghulam Ali (P. W. 6). Ghulam Ali (P W. 6) lays down on the ground and thus escaped injury.
Thereafter the appellant and his brothers ran away with their weapons.
4. After the occurrence Ghulam Ali (P. W. 6) went to Police Station, Chiniot which was at a distance of 8 miles from his village. At the said police station he lodged the F.'I. R. (Exh. P. G.) at 6 a.m.
5. The case was mainly investigated by A. S. I. Aman Ullah (P. W. 9). After recording the F. I. R. He proceeded to the spot. Apart from other articles he recovered one empty cartridge which was - lying in the courtyard of the haveli. But as no weapons were recovered from the appellant and his brothers the recovery of the empty cartridge was not of much assistance in linking the appellant and his brothers with the death of the deceased.
6. The post-mortem examination of the deceased was performed by Dr. Akhtar Hussain Jaffri, Medical Officer, Chiniot. Apart from the circumcision wound the deceased had nine injuries on his body. Of these five had been caused by fire-arms. According to the doctor these were the results of two separate shots. He also opined that the deceased had died within seconds of the receipt of the injuries.
7. The appellant and his brothers pleaded not guilty to the charges against them. They denied that they were responsible for causing the death of the deceased. They alleged that the deceased had died accidentally on the night of occurrence at about 9 or 10 p.m. When a gun held by his brother Shaukat went off and that out of enmity the complainant party gave this accidental death the colour of a cold-blooded murder and falsely implicated them in the case, The appellant did not lead any evidence in defence but his brother, Mohammad Ghaus, examined Taj Mohammad Khan (D. W. 1), D. S. P., in support of his version.
8. To prove its case the prosecution relied entirely upon the testimony of Ghulam Ali (P. W. 6) and his sons, Said (P. W. 7) and Faiz (P. W. 8). They stated that at the relevant time they were present in the courtyard along with the deceased and Mst. Bakhi. At about sehriwela the appellant and his brothers scaled over the wall of the haveli and entered the courtyard. At that time the appellant and Mohammad Anwar were carrying guns while Mohammad Ghaus had' a pistol with him. On entering their haveli they raised a laikara. Immediately thereafter Mohammad Anwar fired at Said (P. W. 7) who ran and took shelter in a nearby room and thus saved himself. Thereafter the appellant and Mohammad Ghaus fired at the deceased who was hit. Ghulam Ali (P. W. 6) rushed to the side of the deceased. The appellant fired at him, but he threw himself on the ground and thus escaped from being hurt; the shot instead hit the deceased. Thereafter the appellant and his companions ran away from the courtyard with their weapons by jumping over the wall of the haveli.
9. Ghulam Ali (P. W. 6), Said (P. W. 7) and Faiz (P. W. 8) lived in the haveli where the deceased was killed and the occurrence took place at a time when they would ordinarily be present there. But that does not necessarily mean that we can place implicit faith upon their testimony. It was the case of the prosecution itself that the relations between the appellant and his family on the one hand and Ghulam Ali (P. W. 6) and his family on the other hand were extremely strained. Their disputes started about 8 or 9 years ago over the partition of the family lands. About four or five years prior to the occurrence the parties had a serious quarrel and as a result Ghulam Ali (P. W. 6) and some others were tried for an offence under section 307 of the Pakistan Penal Code. Later, Ghulam Ali (P. W. 6) got a case registered against the appellant and his brothers for committing criminal trespass into his land. About a month before the occurrence the local police initiated proceedings against both parties under section 107/151 of the Code of Criminal Procedure. Some-- time after the occurrence the father of the appellant was killed. For causing his death Ghulam Ali (P. W. 6) and his son Said (P. W. 7) were challaned. At the time when they appeared in the witness- box they were both under arrest for their alleged implication in the said case.
10. Such being the state of r6lations between the parties a serious question arises for consideration whether it will be safe to rely upon the testimony of Ghulam Ali (P. W. 6) and his sons to discover the manner in which the occurrence took place and the persons who were responsible for it. It is to be noticed that Ghulam Ali and his sons had named three persons as the culprits and had specified the roles played by each of them. The learned Additional Sessions Judge did not accept their evidence in respect of two of those persons. Neither the State nor the complainant party has challenged the decision of the Additional Sessions Judge in this regard. From the evidence on the record the case of the appellant cannot be distinguished from that of his two alleged companions.
11. The doctor who performed the post-mortem examination of the deceased found in all ten injuries on the body of the deceased. Five of these had been caused by firearms, four were the indirect result of the head injuries caused by firearms and the remaining injury was attributed to circumcision which was performed a week. Prior to his death. Now, four of the firearms injuries were located on the head close to each and the fifth firearm injury was sited at some distance somewhere in the middle of the back. Taking into account the distance between the injuries on the head and the one on the back the doctor opined that these had possibly been caused by two separate fires. It seems difficult to agree with the doctor. It is to be noticed that all these injuries were caused by a shotgun; in fact the doctor recovered the pellet which had caused the injury on the back. It was not the case of the prosecution that two shotguns were simultaneously fired at the deceased. It seems unnatural that after being hit either in the back or head first the deceased would still have continued to keep his back exposed to the direction of the fire to receive a second shot. It is, therefore more likely that all the firearm injuries were received simultaneously by him by one shot. It is not improbable that while the main body of the pellets hit the bead, the injury on the back was caused by a stray pellet from the same shot.
12. It is a curious feature of the case that of all the persons who were present in the courtyard only the deceased was hurt. Now, the deceased was 11 years of age at the time of his death and there is no evidence on the record that he had taken any part in any of the disputes which his family had with the family of the appellant. Although Ghulam Ali (P. W. 6) and Said (P. W. 7) claimed that they too were fired at by the appellant and his brothers but it seems difficult to accept this part of their story. In the first instance, according to their own version just before the firing the assailants had come right to the place where they were lying. From such a short range, even a marksman of an indifferent skill could not have missed Ghulam Ali (P. W. 6) and his older sons, Said (P. W. 7) and Faiz (P. W. 8). The explanation of Said (P. W. 7) that 'he escaped injury by taking shelter in a room is most unconvincing. Neither Tai Mohammad Khan, D. S. P. (D. W. 1) nor A. S. I., Aman Ullah (P. W. 9) found any pellet on the door or the walls of the room where Said (P. W. 7) claimed to have taken refuge. In fact Taj Mohammad Khan (D. W. 1) described the alleged pellet marks as mere scratches. It is also surprising if the account of the eye-witnesses is true that although the appellant and his brother fired at the 'deceased yet they spared his elder brother Faiz (P. W. 8) who though awoke did not even care to get up from his cot.
13. Taking all the circumstances into consideration it seems more likely that at the time of the occurrence only one shot was fired and that too without any aim in the direction where Ghulam Ali (P. W. 6) was sleeping with his wife and sons. This appears to be the only plausible basis to explain away the fact that of all the inmates of the haveli only a young boy who had taken no part in the family disputes was injured. The possibility that this shot was fired from outside the courtyard cannot also be precluded. It is to be noticed that the walls of the haveli were not very high. In the inspection note (Exh. D. B.) prepared by the Investigating officer, at one place, their height was given as 4-- feet, although, later on, they were described to be 6 to 8 feet high. It is also to be noticed that the Investigating Officer did not find any footmarks at the place where the c1purits were stated to have entered the courtyard by scaling over the wall. Apart from that, if the culprits had in fact entered the courtyard then they would have fired at Ghulam Ali (P. W. 6) and his son Said (P. W. 7) who were personally involved in the family feuds and not at the deceased who had given them no cause for grievance.
14. If we accept the theory that the shot which killed the deceased was fired at from outside the courtyard then the identity of the person who was responsible for it becomes subject to doubt.
Admittedly, the occurrence took place at a time when it was quite dark. Said (P. W. 7) and Faiz (P. W.
8) were asleep at that time. Although Ghulam Ali (P. W. 6) claimed that he and his wife were awoke at the relevant time, but then we have only his own word in support of his assertion. In any event it is doubtful if he could be in a position to recognize the person who had fired in the dark from behind the wall of his courtyard. It is also to be observed that there is no corroboration of his testimony with regard to the identity of the person who fired at the deceased.
15. For the reasons stated above, it is difficult to sustain the conviction of tile appellant on a capital charge. We, therefore, set aside his conviction and sentence and acquit him of the charges against him. He shall be set at liberty forthwith if not required in any other case.