1. ' ANWARUL HAQ, C. J.-This appeal, by the leave of the Court, is directed against the judgment of a learned Judge of the Lahore High Court, dated the 17th of March, 1976, by which respondents Nazir Ahmad and Dost Muhammad were acquitted of the charge of murdering their relation Sikandar.
2. Respondent Dost Muhammad has since died, and, accordingly, the appeal has proceeded against respondent Nazir Ahmad only. The two respondents were brothers inter se and were tried along with their third brother Falk Sher, by the learned Additional Sessions Judge at Mang. While Falk Sher was acquitted the two respondents were convicted and sentenced to transportation for life.
3. ' The occurrence took place at about 6-30 a. m. On the 7th of October, 1970, in the area of Chak No, 184 in Tehsil Chiniot, and the F. I. R. Was lodged the same day at 11-00 a. m. At Police Station Bhawana, at a distance of about 14 miles, by Kamir (P. W. 10), a brother of the deceased Sikandar.
4. ' According to the prosecution, respondent Nazir Ahmad married to Mst. Bhagan, a sister of Wali Muhammad (P. W. 12), but the lady came back to her parents' house when her husband brought a mistress by the name of Mst. Aishia. The respondent approached his wife's brother Wali Muhammad for the return of his wife, and for this purpose he took along with him two respectables namely, Sanata (P. W. 6) and Rehma (P. W. 7). Wall M uhammad called the deceased Sikandar, who was his maternal uncle, for advice. Sikandar demanded the ouster of Mst. Aaisha from the house of the respondent as a condition precedent for the return of his wife Mt. Bhagan. It is alleged that this demand infuriated the respondent, who left the place uttering threats against Sikandar for standing between him and his wife. It may be stated that the respondent is also otherwise closely related to the complainant party, being a paternal cousin of his wife, and the son of a cousin of the deceased as well as of Kamir (P. W. 10).
5. ' At the time of the incident, which took place on the morning following the break-up of the negotiations for the return of the respondent's wife, the deceased was going to his fields, followed by his brother Kamir and his nephew Wali Muhammad. As they reached the lands of Muhammad Nawaz (P. W. 11), respondent Nazir Ahmed and his brother Dost Muhammad as well as their third brother Falak Sher emerged from the nearby cotton field. While Nazir Ahmed and Dost Muhammad were armed with guns. Falak Sher carried a dang Nazir Ahmed fired a shot at Sikandar hitting him on his chest, and Dost Muhammad also fired, hitting the deceased on his back, The deceased expired at the spot.
6. ' The Investigating Officer recovered a crime empty from the spot, in the presence of Sanata (P. W.
7. 8) (different from Sanata, P. W. 6), and one Khushi Muhammad, who was, however, not produced at the trial. The respondent Nazir Ahmed was arrested on the 8th of October, 1970, and produced his licensed gun along with three live cartridges. According to the evidence of the Fire-Arms Expert, Sh.
8. Abdul Rashid (P. W. 9), the crime empty was found to match with the licensed gun produced by the respondent.
9. ' The autopsy of the dead body of the deceased showed that he had suffered as many as five fire- arm injuries and a burnt abrasion on his body.
10. ' At the trial, the prosecution placed reliance on the ocular account of the incident as given by Kamir P. W. 10, Muhammad Nawaz P. W. 11 and Wali Muhammad P. W. 12, supported by evidence as to motive furnished by Sanata, P. W. 6 and Rehma P. W. 7, the medical evidence and the matching of the crime empty with the licensed gun produced by the respondent. All the three accused denied the prosecution allegations, although the respondent admitted having taken a second wife.
11. He also admitted the production of the licensed gun. He alleged that he had been falsely implicated owing to enmity for the reason that his mother-in-law, also named Mst. Aaisha, had gifted her land in favour of his father, and this had annoyed deceased Sikandar and witnesses Kamir and Wali Muhammad, as by means of this gift the children of Mst. Aaisha, namely, Wali Muhammad and his sister Mst. Bhagan had been deprived of this property, which their mother had inherited from her father.
12. ' The learned trial Judge accepted the prosecution evidence as against the respondent Nazir Ahmad and his brother Dost Muhammad, but he acquitted Falk Sher as he had not inflicted any injury on the deceased. In the High Court, however, the learned Judge expressed the view that the three eyewitnesses were related to Sikandar deceased, and there was enmity between Wali Muhammad and the respondents owing to the gift of the land mentioned above, and, therefore, it was necessary to look for independent corroboration, which was not available on the record. The learned Judge also thought that there was conflict between the ocular evidence, and for this reason as well the eye-witness account could not be relied upon.
13. ' Leave to appeal was granted to examine the contentions that the High Court had overlooked the fact that witnesses Kamir and Wall Muhammad were closely related not only to the deceased, but also to the respondents, and there was no reason for them to falsely implicate them ; that the High Court was in error in thinking that witness Muhammad Nawaz was not an independent person ; that the High Court had also erred in rejecting the evidence of the recovery of the crime empty, and in thinking that the medical evidence was in conflict with the ocular evidence.
14. ' After examining the entire evidence with the help of the learned counsel for the appellant as well as the learned counsel for the respondent Nazir Ahmed, and the learned Additional Advocate- General, Punjab, we have formed the view that the order of acquittal recorded by the High Court is not sustainable, and has clearly resulted in grave miscarriage of justice.
15. ' The first important aspect of the case is that the parties are closely related to each other. As already stated, the respondent and his wife Mst. Bhagan are first cousins, and accordingly, witness Wali Muhammad is also paternal cousin of the respondent. Deceased Sikandar and his brother Kamir are also respondent's cousins, and uncles of Wali Muhammad and his sister Mst. Bhagan.
16. Apart from the fact that the respondent had brought another woman into his home, there does not appear to be any other dispute between the two families. The suggestion that the land of mother- in-law of the respondent had gifted by her to the respondent's father at the instance of the respondent's father-in-law was not accepted by Wali Muhammad P. W. 12, and he stated that this was incorrect. No evidence was led by the defence by way of mutation of gift in this behalf. The learned Judge in the High Court placed reliance on an admission made in cross-examination by Rehma (P. W. 7), to the effect that : "It is correct that P. W. Wali Muhammad is annoyed with his father and accused Nazir because his father had got the land inherited by his wife transferred to accused Nazir". Now, this witness was not shown to have any special knowledge of the land transaction between the respondent and his mother-in-law ; and the suggestion put to the witness was opposed to the statement made by the respondent himself in answer to question No, 10 put to him under section 342 of the Criminal Procedure Code. In that answer he had alleged that : "My aunt Mst. Aaishan had inherited 1/3rd share in the land belonging to her father which was got transferred in the name of our father by her husband Ahmad, father of P. W. Wali Muhammad, so that we three brothers could inherit it from our father".
17. ' It, therefore, appears that the defence was not certain of its own stand in this behalf, and the eye- witness account could not, therefore, be thrown out on a suggestion accepted by Rehman, P. W.
18. 7.
19. ' Even otherwise the learned counsel for the respondent was not able to explain as to how Mst.
20. Aaisha, mother of Wali Muhammad (P. W. 12), and mother-in-law of the respondent could be persuaded by her husband to gift the land inherited by her from her father to the brother of her husband, when her own husband and children were alive and would have inherited her land in due course. It seems rather farfetched for a woman to gift her property to her brother-in-law when her own children are alive. In the absence of a mutation of gift, and in view of the denial of such a gift by Wall Muhammad (P. W. 12), who would be the best person to know the correct facts, we think that the admission made by Rehma in cross-examination could not prevail. It was, therefore, not correct for the High Court to assume that the witnesses had a motive to falsely implicate the respondent. The evidence leaves no doubt that the only dispute between the parties had risen due to the fact that the respondent had brought another woman into his home.
21. ' The matrimonial dispute mentioned by the prosecution as the motive for the crime stood fully proved on the record by the evidence of Sanata (P. W. 6) and Rehma (P. W. 7), and was, in fact, also admitted by the respondent, when he stated that he had married this other woman by the name of Mst. Aashian, thus showing that his legally wedded wife Mst. Bhagan may have taken objection in this behalf and gone over to her parents, which would necessitate some efforts on the part of the respondent to bring her back. The High Court was, therefore, clearly in error in thinking that the motive was not proved.
22. ' As to the recovery of the crime empty, the learned Judge has doubted its genuineness, and has also commented upon the manner in which the parcels were despatched to the Forensic Science Laboratory, and has expressed the view that in these circumstances the crime empty cannot be said to be genuinely connected with the licensed gun of the respondent.. To find that the doubts entertained by the learned Judge in this behalf are not justified. The deceased had admittedly died as a result of gunshot injuries, and there was, accordingly, nothing improbable for a crime empty and some pellets to have been found at the spot. As the crime empty was lying near the dead body, but at a distance of about 8 karams from there, its absence from the inquest report would not necessarily negative its presence at the spot as alleged by the prosecution. Even though witness Khushi Muhammad was not produced, and there might have been some litigation between the respondent and the recovery witness Sanata, yet the evidence of the Investigating Officer could not be brushed aside, specially when there was no motive on the part of the complainant party to falsely implicate the respondent. There is no rule that the evidence of a police officer as to the recovery of incriminating articles cannot be accepted, whatsover the circumstances of the case. We consider, therefore, that this is not a case where the recovery of the crime empty could be doubted.
23. ' The riddle as to the receipt of the crime empty by the Forensic Expert was not clarified by the learned counsel for the respondent during the hearing of this appeal, but he relied upon the observation of the learned Judge in the High Court to the effect that there was some discepancy as to the identity of the various parcels, which were despatched from the spot to the police station and from the police station to the Forensic Science Laboratory, and, therefore, it was doubtful whether the genuine crime empty had been tested by the Expert. We have perused the evidence of the Fire Arms Expert, namely, Sh. Abdur Rashid (P. W. 9), and there does not appear to be any ambiguity in his statement to the effect that one of the parcels received by him contained the crime empty and the other parcel contained the licensed gun of the respondent, and on testing he found that the crime empty had been fired from the gun. Accordingly, we have been left wondering as to what was the exact implication, which impressed the mind of the learned Judge to come to the conclusion that there was some doubt as to the matching of the crime empty with the licensed gun of the respondent.
24. For the foregoing reasons, we are of the view that the finding recorded by the learned trial Judge u to the guilt of respondent Naair Abmad was a proper finding, based on a detailed appreciation of the prosecution evidence, and there was no justification for the High Court to interfere with the same. It was a day-light occurrence, and the ocular account was furnished by witnesses, who although closely related to the deceased, Sikandar, were also related to the respondent, and had no motive to falsely implicate him in A this crime. The motive for the crime also stood properly established on the record. We would, accordingly, accept this appeal, set aside the order of the High Court, and restore the conviction and sentence recorded against the respondent by the trial Court. In computing the period of imprisonment still to be undergone by the respondent Nazir Ahmad, the period already spent by him as a convict under the orders of the trial Court as well as the period of detentions spent by him under orders of the Supreme Court during the pendency of this appeal shall be taken into account.