' TARIQ SHAMIM, J.---Through this appeal, the appellant Saadullah son of Ali Muhammad, has challenged his conviction and sentence awarded to him by the learned Additional Sessions Judge, Taunsa Camp at D.G. Khan vide his judgment, dated 2-4-2004, whereby he was convicted under section 302(b), P.P.C. In case bearing F.I.R. No,379 of 2002, registered under section 302, P.P.C. At Police Station Kot Mubarak, and sentenced to death with a further order to pay compensation of Rs,50,000 in terms of section 544-A, Cr.P.C. To the legis heirs of the deceased, failing which to undergo 6 months' S.I. The learned Additional Sessions Judge has sent the Murder Reference No,406 of 2004, for confirmation or otherwise of sentence of the appellant, which shall also be answered by this judgment, besides disposal of this appeal.
2. The brief facts of the case are that on 13-12-2002, the complainant along with Ali Muhammad his brother and Muhammad Bakhsh his cousin after purchasing household articles from Kasba Kot Mubarak went to the house of their uncle Meer Gul situated at Chak Kaura Khan. In the said house, Ghulam. Sarwar and Ahmad Bakhsh were also present. After taking dinner they left for their houses.
At 9-30 p.m., when the complainant along with Ali Muhammad, Ahmad 'Bakhsh, Muhammad Bakhsh and Ghulam Sarwar reached the Kacha path near the house of Saadullah appellant, they saw the appellant running towards them with a pistol. He was identified in the light of the moon. On coming close the appellant raised a Lalkara that he would teach a lesson to Ghulam Sarwar for having illicit relations with Mst. Amena wife of his brother Bilal. On his Lalkara, Ghulam Sarwar started running while Ahmad Bakhsh deceased followed him. In the meanwhile, the appellant fired shot from his pistol and one of the shot hit Ahmad Bakhsh on his back, on account of which he fell down and died at the spot.
3. The prosecution in order to prove its case produced as many as 8 witnessed including the eye- witnesses namely Muhammad Bakhsh and Ghulam Sarwar; Dr. Naveed Asif, Ghulam Yasin Constable, the recovery witness, Abdul Hameed, Head Constable, Muhammad Nawaz, Constable and Ilahi Bakhsh, the formal witnesses and the Investigating Officer namely Mirza Muhammad Safdar, Sub-Inspector/S.H.O. After tendering in evidence report of Chemical Examiner (Exh.P.J.) and that of the Forensic Science Laboratory (Exh.P.K.), the learned A.P.P. Closed the case for the prosecution. The statement of the appellant was recorded under section 342, Cr.P.C. In which he pleaded his innocence. The learned trial Court after taking into consideration every aspect of the case and hearing the arguments, convicted and sentenced the appellant, as mentioned above.
4. We have heard the learned counsel and gone through the evidence with their assistance.
5. The eye-witness account in this case was furnished by Muhammad Bakhsh (P.W.6) and Ghulam Sarwar (P.W.7) who has also deposed about the motive behind the occurrence which was illicit relations of Ghulam Sarwar (P.W.7) with Mst. Amena wife of his brother Bilal. According to the contents of the F.I.R., the occurrence took place at 9-30 p.m. On 13-12-2002. The appellant approached the complainant party and fired at Ghulam Sarwar (P.W.7) from behind. However, one of the fires hit Ahmad Bakhsh deceased on the back, as a consequence whereof he fell on the ground and died at the spot. Both the eye-witnesses in their evidence before the learned trial Court reiterated the story narrated in the F.I.R. The dead body of the deceased was brought to the Rural Health Centre, Shah Sadar Din where autopsy of the dead body was conducted by Dr. Naveed Asif, Medical Officer (P.W.4) on 13-12-2002. The following injuries were found on the body of the deceased:-
(1) A lacerated wound 1 c.m. x 1-1/2 c.m. Located on anterior trangle of left neck 2 c.m. Lateral and 1 c.m. Above to laryngeal prominence, margins of wound were black and inverted. It was of entry.
(2) A lacerated wound of 2 c.m. x 1-1/2 c.m. Located on right upper chest posteriorly 6 c.m. Lateral and 2nd throastic spinous process, margins were everted. It was wound of exit.
' The probable time between the injury and death was declared as 15 minutes whereas between death and post-mortem was stated to be 20 to 24 hours. In his cross-examination this witness has categorically stated that the injury received by the deceased was below the chin on the neck in front and that the shot was fired from within 6 feet of the deceased. This obviously negates the stand taken by the prosecution witnesses as to the seat of injury and the direction from which the appellant had fired at the deceased. Thus, there is glaring contradiction between the account furnished by the eye-witnesses and A the medical evidence. Further, it was a night time occurrence and according to the said witnesses the appellant had been identified by them in the moonlight. It is an admitted position that identification of a person in moonlight is rather difficult. In the impending circumstances the logical presumption would be that the murder of the deceased was not witnessed by Muhammad Bakhsh (P.W.6) and Ghulam Sarwar (P.W.7).
6. Another aspect which needs consideration is that the motive, if at all the appellant had one, was against Ghulam (P.W.7) and not the deceased. Further, Muhammad Bakhsh (P.W.6) is a resident of a place approximately 20 miles away from the place of occurrence and Ghulam Sarwar (P.W.7) in his cross-examination has admitted that he lives next to the house of one Meer Gul which is approximately 5/6 miles away from the place of occurrence. The other eye-witnesses mentioned in the F.I.R., also do not belong to the place where the murder had taken place. These witnesses have not been able to provide any convincing reason for their presence at the place of occurrence.
Thus, it is safe to conclude that they are chance witnesses.
7. Insofar as motive is concerned, the learned trial Court observed that no direct motive was available to the appellant against the deceased. However, the motive behind the occurrence was to a certain extent accepted by the learned trial Court solely on the premise that the Investigating Officer, while appearing as witness before the Court, had conceded that he had conducted a discrete inquiry and found that there was some substance in the motive. This by itself is not sufficient to prove the motive which even otherwise appears to be flimsical.
8. It has also been observed that at one point a compromise had taken place between the parties as a result of which the complainant and the witnesses submitted affidavits before the learned trial Court in which they exonerated the appellant but on account of non-payment of the settled amount the compromise was not given effect to. Thus, there is no denying the fact that the complainant and some witnesses at one stage of the trial had exonerated the appellant of the crime.
9. The last piece of evidence against the appellant is that of recovery of pistol on his pointation which was subsequently wedded with the empties recovered from the spot by the police. It has been noticed that empties were taken into possession by the police on 13-12-2002 whereas they were received by the Forensic Laboratory on 21-12-2002, which is one day after the arrest of the appellant. The delay in dispatching the empties to the Forensic Science Laboratory has created doubt about the veracity thereof. Further in the inquest report there is no mention of recovery of empties from the spot in Column No,23. Insofar as the recovery of pistol from the appellant is concerned, the same was witnessed by Ghulam Yasin and Rab Nawaz Constables. Ghulam tasin entered the witness box as P.W.3 and deposed about the recovery of pistol P.1 and live cartridges P.2/1-3 from the house of the appellant on his pointation. Incidentally the witnesses of recovery are police officials. Mirza Muhammad Safdar Sub-Inspector (P.W.8) in his cross-examination has admitted that he did not make any effort to call any other person from the locality to join the recovery proceedings. In view of the foregoing not much reliance can be placed on the recovery of weapon from the appellant and the empties from the spot.
10. As a sequel to the above, we have come to the conclusion that the prosecution has failed to establish its case against the appellant beyond any reasonable doubt. Consequently, we accept this appeal and while extending the benefit of doubt to the appellant, we acquit him of all the charges. The conviction and sentence awarded to the appellant by the learned trial Court is set aside. The death sentence is not confirmed. The appellant be set at liberty forthwith if not required in any other case.
' The murder reference is answered in the negative.