' Muhammad Shah and his son Shahid Shah were tried in the Court of Qazi Muhammad Latif, Additional Sessions Judge, Gujrat, for the murder of Ijaz Husain Shah. By his judgment dated 16-10- 1978, the learned trial Court acquitted Shahid Shah of the charge and convicted Muhammad Shah appellant under section 302, P. P. C. And sentenced him to imprisonment for life and a fine of Rs, 10,000 in default whereof further one year's rigorus imprisonment was ordered. The learned trial Court under section 544-A, Cr. P. C. Directed the appellant to pay a compensation of Rs, 5,000 to the heirs of the deceased and in default thereof six months' further rigorous imprisonment was directed.
' Muhammad Shah appellant has filed Criminal Appeal No, 1027 of 1978 against his conviction and sentences, whereas Said Amir Shah complainant (P. W. 8) has filed Criminal Revision No, 44 of 1979 for enhancment of the sentence of Muhammad Shah appellant to death and Criminal Revision No, 45 of 1979 against the acquittal of Shahid Shah co-accused. Criminal Revision No, 44 of 1979 was admitted to regular hearing and was directed to be heard along with Criminal Appeal No, 1027 of 1978, while Criminal Revision No, 45 of 1979 was directed to be put up along with Criminal Revision No, 44 of 1979. This judgment disposes of the Criminal Appeal as well as both the Criminal Revisions.
2. The occurrence took place on 24-2-1977 at about 1-30 p. m. In front of the fodder shop of Nawab Shah Qureshi, which is situated on Gujrat-Awan Sharif road at the crossing for Bhimbar road within the area of Township of Madina. The place of occurrence is situated at a distance of one and a half miles from Police Station Saddar Gujrat. Said Amir Shah (P. W. 8) lodged the F. I. R. (Exh. P. F.) at 3-30 p. m. The same day at the police station and the same was recorded by Malik Sher Bakhsh Sub- Inspector, S. H.
0. Police Station, Saddar, Gujrat (P. W. 9).
' Both the accused were arrested on 15-3-1977 and on the same day at the instance of Muhmmad Shah appellant gun (Exh. P. 6) and empty (Exh. P. 7) from its chamber were taken into possession from his kotha vide Memo. Exh. P. E. This Memo. Was attested by Sadiq Husain Shah (P. W. 6) and Akbar Shah (not produced) besides Malik Sher Bakhsh S. H.
0. (P. W. 9).
Pervez Shah, Nawab Shah Qureshi, Shah Husain Shah (P. W. 7) and Said Amir Shah (P. W. 8) were cited as eye-witnesses in the F. I. R., but at the trial the latter two only appeared.
3. The case for the prosecution, briefly stated, is that about a fortnight prior to the occurrence the wheat crop of Said Amir Shah complainant and his son Ijaz Husain Shah deceased was cut for which they suspected Shahid Shah accused and Muhammad Shah appellant, whereupon the deceased snatched the chadar of Shahid Shah accused demanding from him a nian which he did not do and proclaimed that if he has the necessary strength, he will take back the chadar.
' On the day of occurrence at about 1-30 p. m. Muhammad Shah appellant armed with a single- barrel gun (Exh. P. 6) and Shahid Shah accused armed with a revolver went on the top of the roof of post office of village Madina and fired upon the deceased, who was sitting in front of the fodder shop of Nawab Shah Qureshi (not produced), after a lalkara and calling upon the P. Ws. To get aside who obliged by getting aside, but the deceased received the fatal gunshot wounds and succumbed to his injuries at the spot.
4. Dr. Nisar Ahmad (P. W. 1) on 25-2-1977 at 11-30 a. m., performed the post-mortem examination on the dead body of Ijaz Husain Shah and found the following injuries on it:- "(1) Fire-arm entry wound 1/2" x 1/2' on the outer upper part of left arm.
(2) Fire-arm exit wound 3/4' x 3/4' on the inner upper part of left arm.
(Both the injuries fractured the humerus bone.)
(3) Fire-arm entry wound 1/2' x 1/2' on the upper and outer part of left arm 1/2" below injury No, 1.
(4) Fire-arm exit wound 3/4' x 3/4' on the inner and upper part of left arm (Injuries Nos. 3 and 4 also fractured the humerus bone).
(5) Fire-arm entry wound 1/2" x 1/2' on the front upper part of chest 2" from left nipple.
(6) Fire-arm exit wound 3/4' x 3/4' on the front upper left part of chest 1' from the left nipple.
(7) Fire-arm entry wound 1/2' x 1/2' x chest cavity on the outer middle of left side of chest.
(8) Fire-arm entry wound 1/2' x 1/2" x chest cavity deep on the outer and upper part of right side of chest.
(9) Fire-arm entry wound 1/2' x 1/2' x abdominal cavity deep on the front lower left part of abdomen chest above the iliac crest.
(10) Fire-arm entry wound 1/2' x 1/2' x 1/' on the front of right forearm."
' In the opinion of the doctor injuries Nos. 7, 8 and 9 were grievous and dangerous to life, while injuries Nos. 1, 2, 3 and 4 were only grievous and the rest were simple in nature. Death occurred due to shock and haemorrhage as a result of all the injuries collectively. Probable time between injuries and death was immediate and between death and post-mortem examination was within about 24 hours.
5. Both the the accused denied the prosecution allegation and pleaded not guilty to the charge.
Muhammad Shah appellant in answer to question No, 5 stated as under:- "I have been falsely involved in this case because my cousin Anwar Shah was murdered by the uncle of the deceased Ijaz in which case he was acquitted. During the last elections, I belonged to Ch. Zahoor Elahi party and the deceased Ijaz was favouring the Pagganwala Party. The deceased, Ijaz asked me to vote for Ch. Zahoor Ilahi which I refused on which his party nourished grudge against me on account of which I have been falsely involved in this case."
6. Out of the four witnesses mentioned in the F. I. R. The most natural witness was Nawab Shah Qureshi, the owner of the fodder shop in front of which the occurrence had taken place. At the trial the complainant Said Amir Shah improved his position to exclude the presence of Nawab Shah by stating that he was not present at the shop at the time of the occurrence. The place of occurrence is a populated area, i,e, a bus-stand crossing where buses stand and bounded by shops. The occurrence having taken place in broad daylight, not a single independent or natural witness has been produced by the prosecution. The prosecution has produced only Sabir Husain Shah (P. W. 7) a tonga-driver, and Said Amir Shah (P. W. 8) who who is the father of the deceased. The former denied his relationship with the deceased which has been asserted by the defence. As far as Sabir Husain Shah (P. W. 7) is concerned, I would not discard his testimony on the sole ground that he is a tonga-driver and a chance witness being resident of village Moeenpur, as his presence on that account at the busstand could be very probable, but I would discard his evidence on the short gound that after the occurrence on 12-5-1977 he got his statement recorded under scetion 164, Cr.
P. C. Before a Magistrate to the effect that he was not present at the scene of incident at the time of the occurrence and that he had been falsely named as an eye-witness on account of mere relationship. At the trial, he has offered an explanation that he made that statement under threat and coercion. Be that as it may, the witness has indulged himself in self-contradictions which, prima facie, appear to be for motive other than telling the truth and as such, his testimony is not credible. It would be difficult to judge whether his statement under section 164, Cr. P. C. Is the truth or as to whether his statement at the trial is the truth and it may be well possible that both may be false, therefore, I would rule his statement out of consideration on this short ground irrespective of the other defects in his testimony. In the circumstances, we are left with the solitary evidence of Said Amir Shah (P. W. 8) who is father of the deceased and whose presence at the time of occurrence is a mere coincidence. It has been rightly asserted by the learned counsel for the appellant that it is too much to expect that Said Amir Shah would reach at the precise moment when his son was going to be murdered. According to Said Amir Shah when he reached the scene of occurrence for calling bis son Ijaz Husain Shah deceased, he found him sitting at the fodder shop of Nawab Shah Qureshi and when he was at a distance of about ten karams from the deceased, he saw Sabir Husain Shah (P. W. 7) and Parvez Shah (not produced) sitting along with the deceased on a bench. Suddenly he heard a lalkara from the roof of the post office. Shahid Shah (acquitted co-accused) who was armed with a pistol, raised lalkara, while Muhammad Shah appellant who was holding a .12 bore single barrel gun, fired at Ijaz Hussain Shah which hit him on the left side. The lalkara and the fire-shot were given simultaneously. On receiving the fire-shot Ijaz Husain Shah fell down.
' This story does not fit in with the facts and circumstances of this case. From the testimony of Mian Muhammad Ashraf Draftsman (P. W. 5) it is clear that the roof of the post office was at the height of 11/12 feet, while point No, 1 (place of occurrence) was at distace of about 20/25 feet from fthe post office. The learned counsel for the complainant subm its that in act the post office was at a distance of 30 feet from the place of occurrence and the height was about 10 feet. In any case, we have to add another 5/6 feet i,e, a man's height to this. A bare look at the site plan would show that the fodder shop of Nawab Shah Qureshi and the post office are in the same line. In all probability, if the deceased was in fact sitting at the fodder shop of Nawab Shah Qureshi, in normal course he would be sitting in the verandah opposite to the door of the shop and if he was sitting outside the verandah, he might be sitting very close to the shop as buses, etc. Ply on the road and that is the main road connecting Awan Sharif with Gujrat and in the circumstances when the post office and the fodder shop are in the same alignment, as is apparent from the site plan, I believe only an acrobat could have fired from the roof-top, so as to hit Ijaz Husain Shah deceased. The fact that the assailant had chosen the roof-top of the post office as the place of assault indicates that the assailant had chosen this spot for getting cover and concealment of his identity and in all probability, Ijaz Husain Shah was not sitting in front of the shop of Nawab Shah Qureshi, but instead was approaching from the opposite direction and the assailant who had taken cover on the roof of the post office got him like a sitting duck and the possibility cannot be ruled out that as a consequence of the fire in the confusion and melee he got down from the roof in the rear and succeeded in running away unidentified. If the assailant had to choose for sticking his arms and the weapon out from the cover and fire at his victim like an acrobat, it would certainly be far more convenient for him to attack in a dare devil manner from the road side without taking the trouble of climbing at the roof-top.
' Even if I were to take the height of the roof of the post office as 10 feet, a man's height approximately as 5i feet and the distance between point No, 1 and the post office as 30 feet, in all probability, the direction of the wound should be from above downwards as the assailant would be firing from a height of nearly 15 feet. The prosecution does not get full support on this point from the post-mortem examination report. Nor does the medical evidence support the version of the injuries being a consequence of one shot. In his cross-examination, the doctor has mentioned: ' Injuries Nos. 5 and 6 were slanting and the remaining injuries, again said, all the injuris on the left side of the body were straight. The direction of Injury No, 8 is also straight. Injury No, 8 was caused by firing from the right side of the deceased It is correct that the injuries on the body of the deceased were caused by two or more shots fired from opposite directions. The possibility of the deceased turning and getting injuries from one direction cannot be excluded. It is correct that the injuries on the body of the deceased were the result of more than one shot. If the assailant is on the roof at a height of about 10 feet and the victim was sitting on a cot on the ground, the position of the injury would not have been straight. It is correct that the deceased received the injuries from both sides while the assailant was standing at the same level." cannot brush aside the above- quoted testimony for the mere reason that the learned counsel for the complainant and the learned counsel for the State term it as a deliberate concession. If it was so, it was the duty of the public prosecutor or the learned counsel assisting the public prosecutor to seek permission for cross-examining the witness, which was not done. In any case, a remote possibility of what the doctor is stating cannot be ruled out, though it is equally possible that the injuries may be the result of one shot and also the course of Injury No, 7 may also be consistent with the theory of injury proceeding from above downwards, but at the same time when two possibilities are equally probable, the one in favour of the defence has to be accepted, and in this regard it would suffice to say that the medical evidence does not lend full support to the testimony of a chance witness who also happens to be the father of the deceased and we cannot overlook the fact that in this broad day occurrence which took place at a fairly inhabited spot where independent witnesses should have been available, no such witness has been produced by the prosecution. In the above circumstances, strong independent corroboration is needed in support of the testimony of Said Amir Shah (P. W. 8) which is lacking in this case as would be recorded in the following paragraph.
7. Corroboration has been sought from the recovery of single barrel '12 bore gun (Exh. P. 6) and the empty (Exh. P. 7) found in its chamber which were taken into possession nineteen days after the occurrence. Finding of the empty from the barrel of the gun recovered nineteen days after the occurrence does not really advance the case of the prosecution more particularly when the accused was arrested nearly fifteen days after the incident. He would have got rid of the gun and and least the empty at the earliest opportunity. Removal of empty from the gun would not take more than a minute or two and it is very difficult to believe that during the course of fifteen days of his alleged abscondence the appellant did not get rid of the empty and preserved it as a souvenir for presentation to the police, and the parcels of empty and the gun were despatched to the Ballistic Expert with further inordinate delay. I would have considered the recovery of the empty of considerable value, had it been picked up from the spot and the weapon recovered later on separatelyand the articles depatched in separate parcels promptly to the Ballistic Expert. That being not the case, much importance cannot be given to the alleged recovery of single barrel 12 bore gun (Exh. P. 6) and the empty (Exh. P. 7) in its chamber.
8. We are now left with the motive. Even if I were to assume the motive story that Ijaz Husain Shah deceased snatched the chadar from Shahid Shah as he suspected him of having committed the theft of wheat crop, the same could cut both ways. May be on the successful escape of the assailant without being identified, the complainant suspected the two accused and genuinely believed them to be the real assailants and, therefore, supplied false evidence in support of his set- up case. On the other hand, the accused well might have attacked for the annoyance as alleged by the prosecution, but we cannot hang a person on a mere probability, therefore, we are not left with any corroboration of the testimony of Said Amir Shah P.W. And it will not be out of place to mention that Muhammad Shah appellant was found innocent during the course of investigation.
9. In the circumstances, it will be difficult for me to uphold the conviction of the appellant merely for the reason that it is a broad day murder which took place in an inhabited area and a close relation has been nominated by the complainant as the assailant and that the substitution is a rarity. The prosecution has to establish its case beyond reasonabl shadow of doubt. In the particular circumstances of this case, the presen of Said Amir Shah P. W. Is not established beyond reasonable shado of doubt. The chances of the assailant escaping unidentified cannot ruled out.
The medical evidence does not lend full support to the prosecutio version and during the investigation Muhammad Shah appellant was found innocent, therefore, by way of abundant caution I would give the benefit of doubt to Muhammad Shah appellant, accept his appeal and set aside his conviction and sentence. He shall be set at liberty forthwith if not wanted in any other case.
9-A. The result is that Cr. A. No, 1027 of 1978 is accepted and Criminal Revision Nos. 44 and 45 of 1979 are dismissed.