' CH. IFTIKHAR HUSSAIN, J.- Appellant Tahir Abbas was tried under section 302, P.P.C. In case F.I.R. No. 154 registered with Police Station, Garh Maharaja, District Jhang on 18-7-1998 for on the same day at about 2-00 p.m. In the area of Mauza Barah committing the Qaral- e-Amd of deceased Muhammad Luqman by causing his death. [9] compensation to .The legal heirs of the deceased as required under section 544-A, Cr.P.C. And in case of default to suffer six months rigorous imprisonment.
3. He feeling himself dissatisfied with the Impugned judgment has brought the above mentioned Appeal (No. 1083 of 2000).
4. The learned trial Court has submitted Murder Reference mentioned above (No.357 of 2000)' for confirmation of has sentence of death.
5. As both these matters have arisen out of one and the same case, hence are being disposed of by this single judgment.
6. Briefly the facts relevant for the disposal of these matters are that complainant Muhammad Ramzan (P.W.2) on 18-7-1998 at about 5-00 p.m. Made his statement Exh.PA at Adda Kot Bahadur before Noor Muhammad, S.-I. Of that police station. The same was to the effect that he is resident of Kandal Khokhran and a cultivator. On that date at about 10-00 a.m. He along with Muhammad Anwar went to Chah Ber Wala, Mauza Barah to see his brother Muhammad Luqman, who was lying on a cot under a tree towards the south of his cattle shed. Tahir, his nephew and Muhammad Anwar Sipra were sitting on the cot close by to him. Mst.. Nasim Bibi, the wife of Muhammad Luqman was also sitting on the ground close to them and they were talking to each other. At about 2-00 p.m. Tahir Abbas accused came there. Muhammad Luqman said to him that he had stopped him from visiting his house and so as to why he has come there. In reply to the same, Tahir Abbas said to him that he will teach him lesson for stopping him from coming to his house. He with the same brought out pistol and fired with the same at Muhammad Luqman, which hit on his right eyebrow and he fell unconscious. They tried to apprehend Tahir Abbas but he managed good his escape while brandishing pistol. They carried Muhammad Luqman to Civil Hospital, Rodu Sultan, who succumbed to his injury there.
' The motive behind the occurrence it that Tahir Abbas is a bad character man. Muhammad Luqman had stopped him from coming to his house, who took it as his insult and so murdered him.
7. The appellant after due investigation was challaned to the Court. He was formally charged under' section 302, P.P.C. He pleaded not guilty.
8. The prosecution at his trial examination it's eight witnesses.
9. P.W.l Muhammad Anwar has stated that he knew nothing about the occurrence. He was declared hostile and cross-examined by the prosecution.
10. P.W. Muhammad Ramzan complainant has narrated the incident and the motive.
11. P.W.3 Sajjad Hussain, constable had escorted the dead body of the deceased to the mortuary.
According to him, the doctor after the post-mortem examination had handed over to him the last- worn clothes Shirt P.l and Chadar P.2 of the deceased, which he had delivered to the Investigating Officer, who took these into possession vide memo. Exh.PB,
12. P.W.4 Noor Khan, Patwari has prepared the site-plan Ehx.PC and PC/1.
13. P.W.5 Noor Sultan, HC has recorded formal F.I.R, Exh.PA/1. He deposed about the same as well as the safe custody and dispatch of the sealed, parcel of the blood-stained earth to the Chemical Examiner, Lahore.
14. P.W.6 Faiz Ahmad, constable has also deposed about the safe custody and dispatch of that parcel to the office of the Chemical Examiner.
15. P.W.7 Dr. Abdul Rahim Khan has conducted autopsy on the dead body of the deceased on 19-7- 1998 at about 9-00 a.m. He found the following injuries on the same:-
(1) A lacerated wound circular 1/2 c.m. x. 1/2 c.m. On outer and upper part of right eyebrow, 5 c.m.
From the midline.
(2) Swelling 3 c.m. x 2 c.m. On back of skull.
16. In his opinion the death was the result of shock and haemorrhage due to Injury No 1 to the brain.
This according to him was grievous in nature and sufficient to cause death in the ordinary course of nature. Injury No.2 was accidental. Injury No.l was with fire-arm. The time between the injuries'and the death was few minutes and between death and post-mortem 18 to 20 hours. Exh.PD is the carbon copy of his post-mortem report and Exh.PD/1 is the sketch of the injuries. These according to him are in his handwriting and signed by him. He has also signed Injury Statement Exh.PE and Inquest Report Exh.PF.
17. P.W.8 Noor Muhammad, S.-I. (Retd.) has deposed about his investigation.
18. The report Exh.PK of the Chemical Examiner and that of the Serologist Exh.PL were tendered in the evidence.
19. The appellant in his examination under section 342, Cr.P.C. Had denied the allegation appearing against him in the prosecution evidence. He pleaded false implication in the case. In reply to the question that why the case is against him and why the P.Ws. Have deposed him, he has stated that: - "Muhammad Ramzan complainant is the real brother of Muhammacl Luqman deceased who was inimical towards me prior to -the occurrence. Muhammad Ramzan complainant demanded the hand of ( the real daughter of my brother in marriage with his son, who I opposed vehemently, who bore a grudge against me due to this reason and involved me in the instant case falsely".
20. He, however, neither produced evidence in his defence nor opted to depose on oath in disproof of the allegation against him in the prosecution evidence.
21. The learned trial Court after hearing the parties came to the conclusion that the prosecution had succeeded in proving the charge against him beyond any shadow of reasonable doubt It so, has convicted and sentenced him as mentioned above.
22. After hearing the learned counsel for the parties and perusing the record, we have found that the prosecution in support of the charge against the appellant has mainly relied upon it's ocular account, medical evidence, motive and the recovery of crime-weapon pistol P.3 from him.
23. The ocular account of the prosecution has been unfolded by complainant Muhammad Ramzan (P.W.2) alone. He had narrated the incident almost in the line of the F.I.R. He is the real brother of the deceased. He is a chance witness as he is resident of Kundal Khokhran. The incident while had taken place in Mauza Barah. The same is at a distance of about 20 miles from his house. He himself has stated so in the cross- examination. He has also stated in the cross-examination that the had no personal business in the village of the deceased. He has explained that' he had accompanied Muhammad Anwar P.W. To the village of the deceased as the latter had to purchase a buffalo from there. It is interesting to note that Muhammad Anwar as P.W. 1 has stated that he knew nothing about the occurrence. He had denied in the cross-examination that he accompanied the complainant Muhammad Ramzan to the village of the deceased. He, thus had belied his that version that hey had gone to the village of the deceased to purchase buffalo from there. The explanation, thus offered by the complainant of his visit to the house of the deceased at Mauza Barah and having seen the incident has not appeared to us . To be satisfactory. His presence, thus at the spot at the relevant time seems not probable. He, thus could not be relied upon safely.
24. The other three eye-witnesses of this case had refused to support the complainant.
Muhammad Anwar Sipra (P.W.l) had turned hostile and Tahir and Mst. Nasim Bibi P.Ws. Had been given up by the prosecution as having been won over.
Tahir was the son. Of the deceased and Mst. Nasim Bibi was the deceased's widow. Their refusal to support the complainant and the prosecution's case was quite meaningful.
25. The . Ocular account rendered by him when has not appeared to be satisfactory, the medical evidence could not be used in support of the same. The medical evidence though has established that the death of the deceased had occurred due to the. Injury No.l and the same was ante- mortem and sufficient to cause death in the ordinary course of nature and the time of it's suffering by him tallied with the time of occurrence as has appeared in the evidence of the complainant, the same but due to ocular account being not reliable could not be used to support the same. The same, therefore, was inconsequential to the case of the prosecution.
26. The motive behind the occurrence was furnished by the complainant alone. He has not appeared to be a reliable witness'. This story has not come from the mouth of any independent person. It, therefore, could not be used to corroborate his own self. Even otherwise, the complainant had admitted that he was not present during the motive incident. It, thus was of no consequence to the case of the prosecution.
27". As regards the recovery of crime weapon pistol P.3, the same too was inconsequential as according to P.W.8 Noor Muhammad, Investigating Officer, no empty was recovered from the spot.
So, no matching- report of the expert could be j available to the prosecution to say that such) weapon was used in the occurrence. .
28. We are, therefore, convinced that the prosecution could not bring home the guilt to the appellant beyond any shadow of reasonable doubt. He, therefore,, was entitled to the benefit of the same.
29. We, therefore, accept his appeal No. (1083 of 2000) and set aside the impugned judgment and acquit him of the charge giving him the benefit of doubt. He is in custody. He be set at liberty forthwith, if not required in any other case.
30. The Murder Reference is answered in the negative. The sentence of death is not confirmed.