' Z. A. CHANNA , J.-The two appellants were tried along with one Ghulam Nabi, brother of appellant Gul Hassan, by the learned Sessions Judge, Jacobabad, in respect of offences under sections 302 and 307, both read with section 34, P. P. C. For committing murder of one Muhammad Khan and attempting to commit murder of a tonga driver, by name Mughul, by means of fire-arms. Both the appellants have been convicted for above offences, while their companion, Ghulam Nabi, was acquitted. Appellant Lakhmir was awarded death sentence for the offence under section 302/34, P.
P. C. While appellant Gul Hassan for the said offence has been sentenced to imprisonment for life.
Both the appellants have further been sentenced to imprisonment for three years for the offence under section 307/34, P. P. C. Additionally, each of them has been sentenced to pay a fine of Rs, 500, or in default to undergo R. I. For six months. Appellant Lakhmir has also been convicted under section 13(d) of the Arms Ordinance and sentenced for the said offence to R. I. For two years. The appellants have come up in appeal to this Court against their convictions and sentences.
' The incident which has given rise to the present appeal occurred in the city of Jacobabad on 9- 10-1975. It is alleged that first informant Ahmad Khan and his brother, deceased Muhammad Khan, who had gone to Jacobabad for the purpose of business, came to the bus stand for the purpose of returning to their village, when at about 11-30 a.m. The two appellants, of whom Lakhmir is said to have been armed with a gun, while appellant Gul Hassan carried a lathi, turned up alongwith acquitted accused Ghulam Nabi, who was armed with a pistol. According to the F. I. R., which was lodged at the Jacobabad City Police Station at 11-45 a.m. That is, 15 minutes after the occurrence of the incident, appellant Lakhmir and acquitted accused Ghulam Nabi fired at deceased Muhammad Khan, who fell down. The incident was witnessed by Ahmed Khan, Sanwlo and the driver of the tonga in which the two brothers had come to the bus stand. In the firing tonga driver Mughal also sustained gunshot injuries. After firing at the deceased and tonga driver, the appellants and their third companion ran away. The shots were heard at the Jacobabad City Police Station, which was two to three hundred paces away from the scene of offence, and A. S. I.
Fakir Muhammad accompanied by P. C. S. Karimdad and Muhammad Saleh chased the assailants and managed to apprehend the two appellants in the Gharibabad Muhallah, at a distance of 3-4 furlongs from the scene of offence. It is stated that appellant Lakhmir had a single barrelled gun and 4 live cartridges, which were secured, while from appellant Gul Hassan a lathi was secured.
The third culprit, Ghulam Nabi, managed to make good his escape in the crowd. The two appellants were brought to the police station, where in the meanwhile first informant Ahmad Khan had filed his report.
' The investigations in the case were conducted by S. H.
0. Abdul Fateh. After recording the F. I. R. Of Ahmad Khan he accompanied the latter to the scene of offence where he found P. W. Mughul lying injured on the ground. The S. H.
0. Recorded his statement and sent him to the hospital for examination and treatment. The S. H.
0. Thereafter prepared a memo of the vardat from where he secured two crime empties and blood-stained earth. He next prepared inquest report in respect of Muhammad Khan who was lying dead at the vardat. Thereafter the deadbody of Muhammad Khan was sent to the Medical Officer for autopsy. The S. H.
0. Also found P. W. Sanwalo at the vardat. He recorded statement of Sanwalo. On returning to the police station, the S. H.
0. Found that A. S. I. Fakir Muhammad had apprehended the,two appellants and brought them to the police station. He recorded the statements of A. S. I. Fakir Muhammad P. C. Karimdad and P. C.
Muhammad Sallah. The gun secured from appellant Lakhmir was sent to the Ballistic Expert alongwith the two Crime-empties recovered from the vardat. The report of the Ballistic Expert is to the effect that these two crime-empties had been fired from the same gun. On completion of the investigation the case was challaned.
' The defense of the appellants is complete denial. According to them they have been falsely implicated in the case due to enmity with the complainant party. It may be stated here that some 8 or 10 years prior to the present incident, one Gujan, who is stated to be the brother of appellant Lakhmir and a relative of appellant Gul Hassan and acquitted accused Ghulam Nabi, was murdered and for his murder Sanwalo and Khio were tried but acquitted. This murder, it is stated, is not only the cause of enmity between the parties but has triggered the present incident.
' We have heard Mr. Muhammad Hayat Junejo, the learned Advocate for the appellants, and we have also had the benefit of the arguments of Mr. Ghulam Ali Agha, who appeared for-the Advocate-General. We find that there are the following pieces of evidence against the appellants :-
(a) Ocular testimony .Of P. Ws. Ahmad Khan and Sanwalo.
(b) The strong corroborating circumstances of the two appellants being apprehended at the spot and a gun having been secured from the possession of appellant Lakhmir.
(c) The report of the Ballistic Expert to the effect that the two crime empties found at the vardat had been fired from the gun said to haw been recovered from the appellant Lakhmir.
(d) The medical evidence showing that both the deceased and P. W. Mughul had sustained gunshot injuries.
(e)Evidence regarding motive, namely the previous murder of Gujan.
' We have closely examined the evidence of the two eye-witnesses but we find that their evidence does not inspire confidence. As regards P. W. Sanwalo, though his name transpires in the F. I. R.
Which as stated earlier was lodged within 15 minutes of the incident, the admitted position is that Sanwalo resides 35-40 miles away from the scene of offence and has given no satisfactory explanation for his presence at the scene of offence. According to him he had gone to the city of Jacobabad two or three days previously for the purpose of business and making purchases and had gone to the bus stand for returning to his village when the incident occurred. He, however, admitted that he had made no purchases at Jacobabad despite his stay in the city for 2-3 days.
He claims that he was residing in Jacobabad with Karim Bux who, however, was not examined.
Moreover, it has not been established that the 161 statement of this witness was recorded at any time. Though in his examination-in-chief the witness has stated that his police statement was recorded and S H.
0. Abdul Fatah has also testified that he had found Sanwalo at the scene of offence and recorded his statement there, in his cross-examination P. W. Sanwalo has stated that he does not remember if the police had recorded his statement. More positive evidence is forthcoming from A. S. I. Fakir Muhammad who has categorically stated that 161, Cr. P. C. Statement of Sanwalo was not recorded at all. In regard to the incident itself, P. W. Sanwalo's evidence is contradictory and unreliable. He has testified that appellant Lakhmir fired at the deceased who fell down and thereafter appellant Ghulam Nabi fired at him. However, no witness has stated that the deceased was fired at after he had fallen down. The 'extent to which P. W. Sanwalo has departed from the truth is shown by the fact that he has claimed that after the deceased had fallen down in consequence of being hit by the fire-arm shots, appellant Gul Hassan had given 2-3 lathi blows to the deceased. However, the medical evidence belies him and indicates that no injuries with a blunt weapon were caused to the deceased.
' The most important eye-witness in the case is tonga driver Mughul who had brought the deceased to the bus stand. He, however, has not supported the prosecution case at all. While he has testified that three persons armed with guns had fired at the deceased and thereafter had run away, and in consequence of their indiscriminate fire he also had sustained gunshot injuries, he has very categorically stated that the accused present in Court are not the persons who had attacked the deceased.
' There remains the evidence of first informant Ahmed Khan. No doubt he has testified that the two appellants and acquitted accused, Ghulam Nabi, had attacked the deceased near the bus stand in the city of Jacobabad, and after appellant Lakhmir and the acquitted accused, Ghulam Nabi, had fired and hit the deceased respectively with their gun and pistol, the three culprits ran away, but we are not much impressed with his evidence. In the first place since the first informant and the deceased apparently decided suddenly to return to their village, it is not known how the appellants acquired knowledge of their movements and their desire to return to their village so that they could wait for them and attack them at the bus stand. Even if we assume that the meeting between the appellants and the complainant party was a chance one, then also we are unable to place reliance on the evidence of Ahmad Khan as the account of the incident which he has given is full of contradictions and is not a consistent one. According to the first informant, he had purchased Biris, Gur and other provisions at Jacobabad city but neither he produced those articles before the police nor do we know what happened to them. Again, whereas according to him both Lakhmir and Ghulam Nabi had fired twice at the deceased, he was contradicted on this point by P. W.
Sanwalo who states that appellant Lakhmir had fired first at the deceased and after the deceased had fallen down appellant Ghulam Nabi fired once at the deceased. The evidence of both these witnesses is also at complete variance with the evidence of the third eye-witness, Mughul, whose presence at the scene of offence cannot be doubted by reason of the fact that-he had sustained gunshot injuries. According to P. W. Mughul all the three culprits had guns and each of them had fired at the deceased. Another circumstance which casts the shadow of doubt on the testimony of P. W. Ahmad Khan is that whereas according to him neither he nor the deceased had partaken of breakfast before the incident, according to the medical evidence semi-digested food was also found in the stomach of the deceased. This would indicate that the deceased had taken food 2-3 hours before the incident. In other words, the deceased had taken breakfast between 8-30 and 9- 30 a.m.
' The most important piece of evidence against the appellants, however, is that 'they are stated to have been apprehended at the spot. Evidence on this point has been given by A. S. I. Fakir Muhammad and P. C. Karimdad. They have further testified that from appellant Lakhmir they had secured a gun and 4 cartridges while from appellant Gul Hassan they had secured a lathi. We find their evidence highly improbable. Although according to the F. I. R. The scene of offence was 2 or 3 hundred paces away from the police station, according to P. C. Karimdad the station was at a distance of two furlongs from the scene of offence. Moreover, according to S. H.
0. Abdul, Fatah, he had sent A. S. I. Fakir Muhammad and P. Cs. Karimdad and Muhammad Sallah to pursue the culprits some 10 or 15 minutes after the gunshots were heard. Apart from the fact that it is unlikely that the assailants of the deceased, after firing the gunshots at the deceased, would have cared to tarry at the scene of offence, according to the eye-witnesses themselves the culprits ran away immediately after firing the shots. A. S. I. Fakir Muhammad and P. C. Karimdad have admitted that they first went to the scene of offence and thereafter they chased the culprits. If these three Police Officers had started from the police station 10 to 15 minutes after hearing the gunshots and they had thereafter to cover two furlongs in order to reach the scene of offence, we do not see how they could have found the culprits at or near the scene of offence in order to chase or pursue them. Very likely by the time the police officers came to the scene of offence, the culprits must have been at a very afe distance from the scene of offence. The story thus of the three Police Officers that they found the culprits at a few yards from the scene of offence and after a chase they apprehended them at a distance of 3/4 furlongs from the scene of offence appears to be highly improbable and not based on truth. Another circumstance which casts doubt on the story of the chased and capture is that whereas admittedly the locality where the incident occurred was a crowded one, there being shops, bus stand, cattle piri and other places of business all around, not a single witness of the locality has been examined in support of the story of pursuit and capthre.
Even the mashirs of the recovery of gun and lathi from the two appellants were not from among the public but the two constables, Karimdad and Muhammad Sallah, who were made to act as thashirs, indicating that either.
2. The facts of prosecution case, as disclosed in the statement of Nehmat Khan P. W. 7, are as follows: ' On 10th June 1972, at Rotiwela, Nehmat Khan, Muhammad Ashraf P. Ws. And one Sarwar were grazing sheep and goats near a Kassi known as Dalani Shahni in Chak Malook, at a distance of six miles from Police Station, Chakwal, District Jehlum. Mst. Amir Begum deceased came to the Kassi for washing clothes. She was followed by the accused who had come there to offer water to the buffalo. She was carrying a moongli. Immediately after her arrival, she began to abuse Mst. Amir Begum and started giving her blows with the moongli. The complainant on seeing this reached the spot and found Mst. Amir Begum lying senseless. It is stated that the accused threw the moongli there and escaped. Mst. Amir Begum was brought to her house where she succumbed to the injuries soon after her arrival.
' The motive was that Haq Nawaz husband of the deceased was an Army employee. He developed illicit relations with the accused. The latter wanted to marry him and remove the deceased from her way.
3. First information report (Exh. P. A.) was recorded by Ghulam Sarwar, S. H. O. Police Station, Chakwal at 2-00 p.m. On the same day. He reached the spot at 4-00 p.m., prepared the injury statement Exh. P. C., inquest report Exh. P. D. And despatched the dead body to mortuary Chakwal for post-mortem under the escort of Noor Muhammad F. C. (P. W. 2). The complainant produced moongli P. 1 before the Investigating Officer. The same was taken into possession vide memo. Exh. P.
B. He arrested the accused on 11-6-1972.
4. Dr. Asghar Hamid Qureshi conducted post-mortem examination, and found on the dead body, .a lacerated wound on ttie left mastoid bone behind the ear with fracture underneath the injury and two contusion wounds on the head causing fracture of bone. He opined that these three injuries were ante-mortem and sufficient to cause death individually or collectively. Death according to the doctor occurred due to bleeding into the left cerebral hemisphere.
5. The accused denied the charge against her and pleaded innocence. She attributed her involvement in the case due to enmity and produced no defense, except copy of statement Exh. D.
F. Of Ghulam Muhammad son of Ahmad Khan.
6. We have gone through the evidence and heard the learned counsel for the State and the respondent. The prosecution case mainly rests on the ocular evidence of Nehmat Khan (P. W. 7), Muhammad Ashraf (P. W. 8) and Ghulam Ghaus (P. W. 9), motive, recovery of the weapon of offence and the medical evidence.
7. The trial Judge disbelieved the ocular evidence, rejected the motive and also recovery evidence.
The evidence of Nehmat Khan P. W. Was discarded on the ground that he was closely related to the deceased and contradicted with the statements of other witnesses on material points.
' Muhammad Ashraf P. W. Was disbelieved on account of enmity while Ghulam Ghaus's evidence was discarded as his presence on the scene of occurrence was not established and also that his statement did not inspire confidence.
' We find no reason to differ with the findings of the trial Court and hold that the ocular evidence was rightly rejected.
' Nehmat Khan P. W. Is admittedly maternal-uncle of the deceased. He did not mention in the F. I. R.
Ghulam Ghaus P. W. To be present at the scene of occurrence. He made supplementary statement to include his name in the set of eye-witnesses but it appears from the statement of Ghulam Ghaus P. W. That it was an improvement made by Nehmat Khan.
' Muhammad Ashraf P. W. Although did not admit that he was inimical to the family of the accused, but it is established that Ghulam Muhammad son of Ahmad Khan had appeared against him as a witness in a theft case. Ghulam Muhammad is admittedly son-in-law of Mst. Bholi, the sister of the father of the accused.
' There are also other discrepancies in his statement which render his testimony not fit for reliance.
Ghulam Ghaus P. W. Did not admit that Mst. Bholi was sister of the accused's father, although he had admitted the same before the Committing Magistrate. After close examination of his statement, we find that his statement is also not reliable to justify order of conviction. There is no corroboration available to the ocular evidence in this case. The production of moongli by the complainant himself before the Investigating Officer and it being not stained with blood, was rightly rejected by the trial Court.
' The solitary evidence of Allah Yar P. W. 5, who is paternal uncle of th B deceased, cannot prove motive against the accused. Even otherwise, mer proof of motive itself is not sufficient to warrant conviction of the accused, in the absence of reliable ocular evidence. In any case, having discarded C the ocular evidence, the evidence of motive and recovery, the medical evidence is of no significance.
8. The upshot of the above discussion is that there is no merit in this appeal and the revision which are dismissed. .