KHIZAR HAYAT, J.----Manzoor alias Manzoori son of Masoora, aged 35 years, Muhammad Yar alias Mammi son of Sadiq, aged 35 years, and Sohni son of Pira, aged 23 years, were tried by the learned Additional Sessions Judge, Vehari, for the murder of Allah Data committed at 9 p.m. On 26th October, 1975 in the house of Ameer P. W. In Chak No. 231/E. B., District Sahiwal. They were convicted under section 303 read with section 3-1. P. P. C. Muhammad Yar and Sohni appellants were sentenced to life imprisonment and a fine of Rs. 2,000 each and in default of payment of fine to undergo further rigorous imprisonment for one year. Manzoor alias Manzoori appellant was sentenced to death and a fine of Rs. 3,000 or in default thereof to undergo two years' R. I. On realization of fine, the carne was ordered to be paid as compensation under section 544-A, Cr. P. C, to the legal heirs of the deceased Allah Ditta. The appeal filed by the appellants against their conviction and sentence and the reference by the learned Additional Sessions Judge under section 374, Cr. P. C. For confirmation of the death sentence are before us. This judgment will dispose of both the matters.
2. The incident in this case was reported by Mst. Rajo P. W. 9, the mother of Allah Ditta deceased at Police Station Ahinad Yar, where her statement Exh. P. D. Was recorded by S. 1. Fazalur Rehman P. W.
13 at 2 a m. On 27th October, 1975. She stated that Allah Ditta deceased was her son, for whom she had obtained the hand of Mst. Pathani. Daughter of Ameer P. W. 6; as his first wife had died. On the Ist of Ramazanul Mubarki, his Nikah was performed with Mst. Pathani, but the consummation (Rukhsati) had not.Taken place. On 26th October, 1975, a Barat (marriage party) was arranged for bringing the bride to her house. Sawar P. W. 8, Manzoor (not produced), Ahmad alias Ahmi P. W. 10 were among the invitees. All the three appellants were also invited to attend the marriage of Allah Ditta deceased. They were also present at the house of the deceased for joining the marriage party. The barat (marriage party) reached the house of Ameer P. W.
6. The houses of both the bride and the bridegroom %,,ere situated adjacent to each other having a common courtyard. All of a sudden, Sohni appellant exhorted Manzoori appellant that it was a befitting opportunity for him and that he should do away with Allah Ditta deceased. At this Lalkara, Muhammad Yar alias Mammi appellant seized the deceased by his legs and Manzoor appellant took out a pistol from the fold of his loin cloth (Dub) and fired at the abdomen of Allah Ditta, who as a result thereof fell unconscious. The persons present there attempted to apprehend the appellants, but all the three appellants forced their way through the crowd and escaped. Immediately thereafter Allah Ditta succumbed to his injury at that spot. The motive for the murder, as stated by her, was that previously Manzoor appellant had demanded the hand of Mst. Pathani from her father for himself but was refused the same. Sohni appellant also had a grouse against the deceased as the former had suspected him of having illicit connections with Mst. Anwar, his wife.
3. Fazalur Rehman, Sub-inspector P. W. 13 after recording the F. I. R. Exh. P. D. Reached Chak No. 231,/E. B. And inspected the place of occurrence. He collected the blood-stained earth and made it into a sealed parcel vide memo. Exh. P. E. Crime empty P. 6 was picked up from the spot and was made into a sealed parcel, vide memo Exh. P. F. Fazalur Rehman P. W. 13 prepared injury statement Exh. P. K. And inquest report Exh. P. L. Of Allah Ditta deceased and despatched the dead body to mortuary at Arifwala under the escort of Constable Muhammad Zaman P. W. 3 for post-mortem examination. After the post-mortem examination, Muhammad Zaman constable brought blood-- stained Chadar P. 1, blood-stained shirt P. 2, blood-stained Gana P. 3, blood-stained Dopatta P. 4 and a sealed phial containing pellets, and produced them before the Investigating Officer, who took them into possession, vide memo Exh. P. C. Lantern p. 10 was taken into posses--sion from the Ihata of Ameer P. W. 6 under memo Exh. P. G. Manzoor appellant was arrested on 29th October, 1975 from whom a .12 bore pistol P. 6 (hereinafter to be ascribed as P. 6-A to avoid confusion because the trial Court by mistake has exhibited both pistol and the crime empty as P. 6) and two live cartridges P. 7/1-2 were recovered and taken into possession through memo Exh. P. J. The pistol was, however, sealed into a parcel, Mirza Ishfaq Beg. Draftsman, P. W. 2 was summoned at the spot, who prepared the site plan in triplicate Exhs. P. B., P. B/1 and P. B./2, It appears from the record that the crime empty and live cartridges recovered from Manzoor appellant were sent to the Fire Arms Expert for necessary comparison but no report was received from him nor the same was tendered in evidence. All the recovery memos were attested by Sultan Mahmood P. W. 11, Muhammad Chiragh (not produced) and the Investigating Officer P. W.
13. After completing the Investigation, the appellants were challenged and sent up for trial.
4. Dr. Mushtaq Ahmad P. W. I conducted the autopsy on the dead body of Allah Ditta on 27th October, 1975 and found. The following injury on the dead body :- "A circular lacerated wound of entry 1 I" x 1 J" on the right side of abdomen. A portion of intestine had come out through the wound. The skin around the wound was of black colour."
On the internal examination, it was found that the abdominal cavity was full of blood. The stomach was penetrated by many pellets and it contained semi-digested food. The intestines were also penetrated by many pellets. The right lobe of liver was ruptured. All the other organs of body were healthy. Sixty-four pellets and four pieces of cork were removed from the body and were put and sealed in bottle, and handed over to the police.
5. According to the doctor, the cause of death was shock and haemorrhage. The abdominal injury was fatal and was sufficient to cause death in the ordinary course of nature. Injury was caused by firearm and was ante-mortem. The probable duration between the injury and death was within 15 minutes and between death and post--mortem examination about 16 hours. Doctor Mushtaq Ahmad stated in the cross-examination that the shot at the deceased was fired from a distance within four feet.
6. The prosecution relied on the ocular account furnished by Ameer P. W. 6, Sawar P. W. 8, Mst. Rajo P. W. 9 and Ahmad alias Ahmi P. W. 10, recovery of pistol P. 6-A from Manzoor appellant proved by Muhammad Sarwar P. W. 12, S. I. Fazalur Rehman P. W. 13 ; the evidence of motive provided by Ameer P. W. 6 and Mst. Rajo P. W. 9 and the medical evidence referred to above.
7. At the trial, the appellants denied the allegations levelled against them by the prosecution. They however, did not produce any evidence in defence.
8. Learned counsel for the appellants has argued that there was no marriage party of Allah Ditta deceased on the fateful night, because the prosecution has not produced any documentary evidence to prove the factum of Nikah of Allah Ditta with Mst. Pathani which had allegedly taken place a few days prior to the occurrence. The story of marriage party has been introduced to show that the murder of Allah Ditta was witnessed by his relatives who have been produced as eye- witnesses in the case. These witnesses are not only related inter se but are also close rela--tions of the deceased. Their testimony should not be accepted without any corroboration from independent and unimpeachable source, which is badly wanting in the instant case.
9. Mst. Rajo P. W.
9. When examined in Court, stated that Allah Ditta deceased was her only son. His first wife had died six months prior to the occurrence and she had betrothed the deceased with Mst. Pathani daughter of Ameer P. W.
6. The Nikah was performed on the Ist of Ramzanul Mubarik, but Rukhsati (consummation) had not taken place. A marriage party (Barat) was arranged at 9 p. m. On the fateful night which was to go to the house of Ameer P. W. To bring the bride. All the three appellants also had joined the marriage party on her invitation and had accompanied the Barat to the house of the bride. About fifteen minutes after their arrival in the house of Ameyr, the occurrence had taken place. At that time the baratis had gathered around the bridegroom. She was standing at a distance of about three feet from her son. In her cross-examination she admitted that Manzoor P. W. (not produced) was her nephew and Sawar P. W. 8 was her real brother. Ahmad alias Ahmi P. W. 10 and Ameer P. W. 6 were her nephews, who were also brothers inter se. She had reached the police station aV2 a.m. In the company of the Chowkidar on a bicycle. She further deposed that on her inquiry from her son Allah Ditta as to whether be had intimacy with the wife of Sohni appellant, he had sworn his innocence, but Sohni appellant was not satisfied. He hail threatened that he would take revenge from Allah Ditta deceased. Despite these threats, the witness deposed that she had invited Sohni appellant to join the marriage party of her son. She denied the suggestion that her son was killed by some unknown persons on the night of occurrence.
1,0. Ameer P. W. 6, Ahmad P. W. 10 and Sawar P. W. 8 supported the version of Mst. Rajo P. W. 9.
Ameer P. W. 6 stated that prior to the occurrence. Manzoor appellant had demanded the hand of his daughter Mst. Pathani for himself, but he had flatly refused to him, whereupon Manzoor had threatened him -that he would murder Allah Ditta, if Pathani's hand was given to him in marriage.
He conceded that he had issued invitations to all the appellants to attend the marriage ceremony of his daughter and so did Mst. Rajo P. W.
9. According to him, the P. Ws, and other members of the marriage party were standing in the form of a group around the deceased when Manzoor appellant had taken out a pistol and fired at the deceased and then all the appellants had made good their escape. He did not ascribe any role to Sohni and Mammi appellants.
11. We have very carefully scrutinized the ocular evidence. There is no denying the fact that all the witnesses are closely related to the deceased. But the mere fact that these witnesses are related to the deceased would not be sufficient to discard their testimony. If their evidence inspires confidence, there is no reason why it should not be accep--ted. We, however, have noticed that the statements made by the eye--witnesses in this case do not stand the test of scrutiny and the manner in which the occurrence has allegedlly taken place as stated by these witnesses is not free from doubt for more than one reason as detailed below.
12. In the first instance we have found that the participation of Manzoor and Sohni appellants in the marriage ceremony of Allah Ditta deceased is highly improbable in view of the threats held out by Manzoor appellant, that he would kill Allah Ditta deceased if Mst. Pathani's hand was given in marriage to him as disclosed by Ameer P. W.
6. It is also not possible to accept the statement of Mst. Rajo P. W. 9 that Manzoor appellant had no grudge against Allah Ditta deceased. Similarly it is inconceivable that Sohni appellant would have been invited to attend the marriage of Allah Ditta deceased because according to Mst. Rajo P, W.
9. Sohni appellant was not satisfied even after Allah Ditta deceased had taken oath that he had no illicit relations with his wife as suspected by him and he had threatened that he would take revenge from Allah Ditta deceased.
13. Considering the role attributed to Muhammad Yar alias Mammi appellant, his presence at the time of occurrence does not appear to be free from doubt. In the F. I. R. Exh. P. D., Mst. Rajo P. W. 9 has stated that Muhammad Yar alias Mammi had caught hold of Allah Ditta deceased by his legs when Manzoor appellant had fired at him. But while appearing as P. W. 9, she has stated that Sohni appellant had caught hold of Allah Ditta deceased by his legs though in the cross-examination she has tried to explain the aforementioned discrepancy by saying that her earlier statement that Muhammad Yar alias Mammi had caught hold the deceased by his legs was correct. Ameer P. W. 6 who is also one of the eye--witnesses in this case has, however, made no reference to the role attributed to Sohni and Muhammad Yar alias Mammi appellants.
14. The manner in which the occurrence had taken place as disclosed by the eye-witnesses, also appears to be highly doubtful. According to the prosecution story, the eye-witnesses and a number of persons who had joined the marriage party were standing in the form of a group around the deceased when Manzoor appellant had fatally injured the deceased. After the occurrence all the appellants ran away from the place of occurrence. Sawar P. W. 8 has stated that he and the other eye-witnesses had tried to apprehend the appellants but they had managed to slip away from the place of occurrence. He has added that the appellants were given a chase by them upto a distance of a killa and a half but they could not be apprehended. It is difficult to accept the prosecution version that the appellants had managed to run away from the place of occurrence when they were so close to Allah Ditta deceased and the other persons standing around him at the time of occurrence. It is true that Manzoor appellant had a pistol with him but there is nothing in evidence to show that he had tried to re-load it after having fired a shot at Allah Ditta or that he had threatened the prosecution witnesses and otherwise who were present at the time of occurrence to remain away and not to follow hits and the other appellants.
15. According to the prosecution case, the occurrence was not only witnessed by the persons who have been examined as eye-witnesses at the trial but by a number of persons who were present in the house of Ameer P. W. 6, where the marriage party had gone. Some of these persons were not so closely related to Allah Ditta deceased as the eye-witnesses examined by the prosecution but the prosecution has chosen to cite and examine only such persons as eye-witnesses who are closely related to Allah Ditta deceased. No plausible explanation is forthcoming as to why only interested persons have been selected by the prosecution to depose against the appellants. Mst. Rajo P. W. 9 has disclosed in her cross--examination that Sultan and Chiragh Lambardars had also joined the marriage party. Evidently the aforementioned persons must have also seen the occurrence but none of them has been examined as an eye-witness in the case. Sultan Lambardar has appeared as P. W. 11 but he has only proved the recovery memos which were prepared by the Investigating Officer during the investigation of the case. Prosecution---s failure to examine independent and disinterested witnesses in the present case certainly raises an adverse inference against it.
16. After having discarded the ocular testimony for the reasons stated above, it is not necessary to advert to the corroborative evidence produced by the prosecution. In fact, recovery of pistol P. 6-A from Manzoor appellant and securing of crime empty P. 6 from the place of occurrence by the Investigating Officer cannot be used as corroborative evidence because the prosecution has failed to prove that the crime empty secured from the place of occurrence was fired from the pistol P. 6- A.
17. We also find considerable force in the contention of the learned counsel for the appellants that the prosecution has withheld important piece of evidence in the present case which, if produced, would have resolved the doubt which had arisen as to the formation of a marriage patty and the presence of the appellants and other persons in the house of Ameer P. W. 6 at night when the occurrence had taken place. This evidence is Nikahnama in respect of solemnization of the marriage between Allah Ditta deceased and Mst. Pathani which according to the prosecution had taken place a few days prior to the occurrence. Ameer P. W. 6 has stated in his cross-examination that the aforementioned marriage was registered in the Register Nikah Khawani. A copy from the aforementioned register, therefore, could have been easily obtained anti produced by the prosecution at trial, which has not been done.
18. Having regard to the above facts and circumstance we have come to the conclusion that the prosecution has failed to bring home the charge to the appellants beyond reasonable doubt. The conviction of the appellants is not legally sustainable. We accordingly allow this appeal, set aside the conviction and sentence of the appellants and acquit them. They shall be released forthwith if not required in any other case. The sentence of death awarded to Manzoor appellant is not confirmed.