Musa Khan (58), Dost Muhammad (55), Ali Muhammad (50), real brothers, -residents of Dera Usmani Khel of Mauza Goliwala, District Sargodha, were tried for the murder of Fateh Khan by Additional Sessions Judge, Sargodha. On 3rd April, 1975, Ali Muhammad was convicted under section 302, P. P. C. And sentenced to imprisonment for life. He was also fined Rs. 1,000, in default to suffer one year's R. I. Further. Dost Muhammad was convicted under section 323, P. P. C. For causing injuries to Gul Khan P. W. And sentenced to one year's R. I. Musa Khan was acquitted of the charges.
The convicts have appealed through Jail. Gul Khan, father of the deceased, has also come up in revision against the order of acquittal of Musa Khan and conviction of Dost Muhammad under section 323, P. P. C. Instead of under section 302, P. P. C.
2. About two/three years before the occurrence in this case, Fateh Khan deceased developed illicit connections with Mst. Bakhat Bhari were of Ali Muhammad accused Therefore, Ali Muhammad bore a grudge against him and in order to avenge the insult on 10th December, 1972, at about 8 a.m. The three accused armed with -12 bore guns, appeared in Mauza Goliwala. They challenged Fateh Khan deceased, saying that they had come to take revenge from him. Ali Muhammad fired the first shot which fell Fateh Khan dead. His father Gul Khan stopped the accused, but Dost Muhammad accused hit him with the butt-end of his gun on the back of his head. Besides the injured father of the deceased, the occurrence was also witnessed by P. W. 4 Sadiq and Dost Muhammad (given up as unnecessary). The accused fled away, thereafter Gul Khan proceeded to make a report. On the way at 3 p.m. He met with P. W. Saleh Muhammad, A. S. I. At Qaidabad Bus-stand and made report (Exh. P. A.) to him. The A. S. I. Prepared injury statement (Exh. P. W.) of P. W. Gul Khan. He sent his statement (Exh. P. A.) to Police Station Gunjial on the basis of which formal F. I. R. (Exh. P. A./I) was registered at 3-30 p m. The same day. The S. I. Then went to the spot, prepared the necessary documents. Collected bloodstained earth from the place of occurrence and sent the dead body for its post-mortem examination.
3. Dr. Muhammad Sadiq (P. W. 3), Medical Officer, Civil Hospital. Khushab, held the autopsy on the dead body of Fateh Khan on 11th December, 1972 and found a lacerated wound 1/2' x 1/4' on the back of head. The edges of the wound were not tattooed or scorched. The missiles entered the brain and caused fracture of the frontal bone. The pellet was found lying underneath frontal bone.
Stomach contained two ounces of fluids. Small intestines were empty and large intestines con-- tained faecal matter. The bladder was full of urine. According to the doctor, time that elapsed between injury and death was 1.5 to 30 minutes, and between death and post-mortem 36 to 72 hours.
4. On 13th December, 1972, Dr. Pirzada Syed Muhammad Aslam Shah, Medical Officer, Civil Hospital, Qaidabad, examined Gul Khan P. W, and found a healed lacerated wound --" x 1/8" skin deep on the right side of the front of the head. The injury was caused within a duration of 3 to 4 days.
5. On 17th December, 1972, Salem Muhammad, A. S. I. Arrested Musa Khan, who produced his .12 bore unlicensed gun Exh. P. 9, which was taken into possession alongwith two live cartridges P. 1C/1-
2. The same day the A. S. I made applications P. Q. And P. R. For issuing warrants of arrest of Ali Muhammad and Dost Muhammad accused. The case was partly investigated by P. W. 9 Muhammad Iqbal, A. S. I. Police Station Gunjial who arrested Ali Muhammad and Dost Muhammad on 23rd January, 1973. These two had been declared absconders. Ali Muhammad was carrying gun P. 5, three live cartridges P. 6/1-3 which were taken into possession vide memo Exh. P. R. After completing the investi--gation the accused were sent up for trial.
7. The accused denied guilt and ascribed the case to enmity with Gul Khan and P. W. Allah Ditta.
Explaining the case against him, Ali Muhammad said that Fateh Khan deceased was murdered sometime during the night. He further asserted that his were Mst. Bakhat Bhari was not living with him during the days of occurrence and had gone to the house of her father Sultan situated at a distance of one to two killas from their Dera. No accused led evidence in defence.
8. Trial Court came to the conclusion that P. W. 1, Muhammad Sadiq was a disinterested witness and had no axe to grind. His name figured in the F. I. R. It further observed that Gul Khan (P. W. 2) father of the deceased was an injured witness whose statement was corroborated by P. W.
Muhammad Sadiq. Feeling satisfied with the evidence of these eye-witnesses, trial Court found the accused guilty.
9. I have considered the matter. The sole question for determina--tion in this case was whether the eye-witnesses were present at the time of the occurrence It may .Be straightaway mentioned that the injury suffered by Gul Khan informant was of a minor nature. It did not appear to have been caused by the assailants who had come to kill. It could be self-suffered. The most material circumstance appearing in the prosecution evidence, itself made the statement of the eye- witnesses highly doubtful. According to the two eye-witnesses, they were at a distance of about 40 karams when they heard the Lalkaru raised by the accused upon which Fateh Khan deceased ran towards his Dera and had gone about three karams when Ali Muhammad fired the first shot hitting him on the back of his head. Fateh Khan fell. Dosa and Musa also fired, but they missed him.
Thereafter Gul Khan P. W., father of the injured went towards the accused entreating them not to kill Fateh Khan, but Dosa accused gave a blow on his head with the butt-end of his gun. After his son had fallen there was no point in running towards the accused to stop them from killing. It is not the prosecution case that the accused chased the deceased after he had fallen. There is yet another circumstance in, the statement of the informant. i.e. When the accused raised a Lalkara he got aside. On the other hand after the fall of his son he went so close to them that they gave him a minor injury on the head. His statement did not inspire confidence for another reason that is all the three accused had .12 bore guns and each accused fired at the deceased. Had it been so, then the gunshots fired towards the direction of the deceased and his father, would have caused injury to Gul Khan as well, but he has not suffered any injury at all. The fact that a pellet has been found in the deceased's skull and there is no scorching or tattooing indicated that the shots were fired from a distance. Under these circumstances there was every likelihood of injury to those who were with the deceased at that time. Perhaps, realizing this, the informant made an improvement at the trial and said that on the Lalkara the deceased had started running towards the dera. But he did not say so in the F. I. R. It may also be mentioned at this stage that the informant was medically examined on the third day of the occurrence. P. W. 11 Sadiq who was said to be a disinterested witness, appeared on the scene alongwith P. W. Dost Muhammad (given up). Dost Muhammad was said to have stayed with the witness for the night and thereafter they left together at about sunrise, because Dost Muhammad had to purchase a she-camel from Allah Ditta son of Anwar. It is noteworthy that P. W. Sadiq is a chance witness. He lived at a distance of 1f miles away from the place of occurrence. His companion Dost Muhammad who had to purchase a she-camel was given up. Sadiq's statement about the purpose for which he was accompanying Dost Muhammad is not corroborated by any other evidence. It may be mentioned at this stage that before the Committing Magistrate he had said that they were going to purchase the she-cam.-l from Ahmad Khan, but at the trial he said that it was to be purchased from Allah Ditta. It is noteworthy that the witness admitted in Cross-examination that after the occurrence they did not contact Allah Ditta and said that they did not stay at the spot because they had no connection with the deceased.
This witness also made improvements like the informant. He did not mention before the Committing Magistrate that the accused after raising Lalkara had run to a distance of about one karam. Last but not the least, it is in the evidence of the doctor that large intestines contained faecal matter and the bladder was also full of urine, and there were two ounces of fluid in the stomach. This would indicate that the deceased had not yet gone for the call of nature, but according to his father the deceased had offered his morning prayer and had recited Qur'an in the mosque and it was thereafter that he left for the field. Normally before offering prayers one would relieve himself but deceased's bladder and large intestines being full, makes the time of occurrence doubtful, which under the circumstances could be before day break. The recoveries of the weapons from the accused do not advance the prosecution case because there was no proof that the fatal shot was fired from any of their guns.
10. For the foregoing reasons, I am of the view that the presence of the eye-witnesses at the spot was a doubtful matter. Giving the benefit of doubt to the appellants, I accept the two appeals and acquit the appellants. The notices issued against Mosa Khan and Dost Muhammad are withdrawn.